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THE ANNOTATED CONSTITUTION 

OF THE 

AUSTRALIAN COMMONWEALTH. 



N^ 



ANNOTATED CONSTITUTION 

OF THE 

AUSTRALIAN COMMONWEALTH 



BY 



(S^t) JOHN QUICK LL.D. 



OF THE VICTORIAS BAB, ONE OF THE REPRESENTATIVES 
OF VICTORIA IX THE NATIONAL AUSTRALASIAS CONVENTION 1897-8 

AND 

ROBERT RANDOLPH GARRAN M.A. 

OF THK NEW SOUTH WALES BAR, AUTHOR OF "'THE COMING COMMONWEALTH* 




SYDNEY MELBOURNE 

ANGUS & ROBERTSON MELVILLE & MULLEN 

LONDON : THE AUSTRALIAN BOOK COMPANY 

38 WEST SMITHFIELD E.C. 
1901 



SIDNEY 

Websdale, Shoosmith & Co., Printers, 
117 Clarence Street. 



v^ 



TO 

THE PEOPLE OF AUSTRALIA 

THIS BOOK IS DEDICATKD 
BY THE AITHORS 



Digitized by tine Internet Archive 

in 2007 with funding from 

IVIicrosoft Corporation 



http://www.archive.org/details/annotatedconstitOOquicuoft 



PEEFACE. 



The preliminary part of this work is a historical introduc- 
tion and guide to the study of the Constitution of the 
Australian Commonwealth. This is followed by analytical, 
legal, and political commentaries on the Constitution, for the 
use of those who seek a special and comprehensive acquaintance 
with its provisions. 

Our chief aim has been a practical one. Clear as is the 
language of the Constitution, it cannot be fully understood 
without the study of a large correlated literature. 

The Federation of the Australian colonies has occupied 
the best energies of the statesmen and the people of Australia 
for many years ; and this Constitution is the outcome of 
exhaustive debates, heated controversies, and careful com- 
promises. It is an adaptation of the principles of British and 
colonial government to the federal system. Its language and 
ideas are drawn, partly from the model of all modern govern- 
ments, the British Constitution itself ; partly from the colonial 
Constitutions based on the British model ; partly from the 
Federal Constitution of the United States of America ; and 
partly from the semi-federal Constitution of the Dominion of 
Canada ; with such modifications as were suggested by the 
circumstances and needs of the Australian people. 

The Constitution of the Commonwealth, therefore, is not 
an isolated document. It has been built on traditional 
foundations. Its roots penetrate deep into the past. It 
embodies the best achievements of political progress, and 
realizes the latest attainable ideals of liberty. It represents 
the aspirations of the Australian people in the direction of 
nationhood, so far as is consistent and in harmony with the 
solidarity of the Empire. 

Such an instrument of government must needs be rich in 
historical associations, and many of its derivative enactments 



PREFACE. 



are necessarily intertwined with the course of constitutional 
development and interpretation in kindred systems and 
communities. There is hardly a phrase in it without a history, 
or without analogy with a phrase which in some other 
Constitution has been the subject of exhaustive arguments and 
judicial decisions. The Commentaries of the great American 
jurists, and the numerous judgments on constitutional 
questions given by the Supreme Court of the United States 
during the last century, are full of profound reasoning which 
is applicable to the words of this Constitution. Many 
decisions of the Supreme Courts of Canada and the Australian 
colonies upon constitutional questions, and reviews of them 
by the Privy Council, are of great value in the elucidation of 
the Constitution of the Commonwealth. There is thus an 
immense store of material for comparative study. 

The actual history of the Constitution is traced generally 
in Part IV. of the Historical Introduction, and in detail in the 
Historical Notes appended to each clause, section, or sub- 
section. But its study involves many other aspects. Its 
character as a colonial Constitution demands a review of the 
history and principles of colonization, which are shortly dealt 
with in Parts I. and II. of the Historical Introduction. As 
an Australian Constitution, it is intimately associated with 
the story of the constitutional development of the Australian 
colonies, which is traced in Part III. of the Historical 
Introduction. As a Constitution on the British model, it 
requires some knowledge of British constitutional law and 
history, the outlines of which are sketched in the notes to the 
Preamble and elsewhere. And as a Federal Constitution, 
light is thrown upon it by the American, Canadian, Swiss, 
and German Constitutions. Wherever comparison was 
thought useful, the corresponding provisions of those Consti- 
tutions have been set out in small type immediately after each 
section. 

We are fully sensible of the difficulty of attempting to 
expound a Constitution before it has been the subject of 
practical working or judicial exposition. It is impossible to 
foretell where the real difficulties will be found, or how they 



PREFACE. 



will be met. The experience of other countries is a guide, 
but not an infallible guide ; and the development of the 
Constitution of the Commonwealth must assuredly follow lines 
of its own. We have, however, endeavoured, from the vast 
and scattered materials bearing on the subject, to produce a 
work which we hope will facilitate the interpretation of, and 
foster an affection for, the Constitution. We trust that by the 
orderly arrangement of historical matter, by the minute and 
impartial analysis of every fundamental word, phrase, and 
enactment of the Constitution, and by the provision made for 
the comparative study of other Constitutions, with their 
wealth of associated precedents, the work may prove of 
assistance, not only to students of constitutional history and 
political science, but also to those who, in the active fields of 
law, politics, or commerce, have a practical interest in the 
working of the new federal institutions of Australia. 

For valuable assistance to the study and exposition of the 
Constitution of the Commonwealth, we desire to express our 
acknowledgments and obligations to the following works : — 

Sir Thos. Erskine May : ParliameHtary Practice. 

Walter Bagebot : The English Constitution. 

Dr. E. Heam : The Gotemment of England. 

Professor E. Jenks : The Government of Victoria. 

Professor A. V. Dice}' : The Law of the Constitution. 

Sir Richard ChaflFey Baker, M.L.C. : Manual for the Use of the Convention of 

1891 ; and Pamphlets. 
Kent's Commentaries on the Constitution oj the United States. 
Storey's Commentaries on the Constitution of the United States. 
George Bancroft : Formation of the Constitution of the United Stales. 
Dr. John W. Burgess : Political Science and Constitutional Law. 
A. J. Baker (Iowa) : Annotated Constitution of the United States. 
Dr. J. A. Poraeroy : Constitutional Law of the United States. 
Dr. H. Von Hoist : Constitutional Lata of the United States. 
John Fiske : The Critical Period of American History. 
Roger Foster : Commentaries on the Constitution of the United States. 
Dr. Thomas M. Cooley : Constitutional Limitations and Constitutional Laic oi 

the United States. 
E. P. Prentice and J. G. Egan : Commerce Clause of the United States 

Constitution. 
James Bryce : The American Commonwealth. 
Carl E, Boyd : Cases on American Constitutional Law. 
Alpheus Tofld : Parliamentary Government in the British Colonies. 
Goldwin Smith : Canada and the Canadian Question. 
Gerald John Wheeler : Confederation Law of Canada. 
A. H. F. Lefro}' : Legi.4ative Power in Canada. 



PREFACE. 



For information as to the progress of Federation and 
constitutional orovernment in South Australia we are indebted 

o 

to Sir Richard C. Baker, and for similar materials in the case 
of Tasmania to the Hon. Nicholas J. Brown, M.H.A. 
Professor Morris, of the University of Melbourne, kindly 
revised the sketch of ancient colonies and modern coloniza- 
tion down to Magellan's great voyage. We have to thank 
Mr. Francis Walsh, Parliamentary Librarian of New South 
Wales, Mr. R. Church, Parliamentary Librarian of Victoria, 
Mr. G. W. Waddell, Librarian of the Supreme Court of New 
South Wales, and Mr. John Schutt, Librarian of the Supreme 
Court of Victoria, for courteous facilities afforded and assist- 
ance given in referring to original reports and authorities. 

J. Q. 
R. R. Gr. 
7th Dec, 1900. 



-^ I 



TABLE OF CONTENTS. 

PAGE. 

PREFACE ^-ii. 

TABLE OF IMPERIAL STATUTES CITED xiu. 

TABLE OF CASES CITED xix. 



HISTORICAL INTRODUCTION. 

Part L— AXCIENT COLONIES 

(1) Hellenic City SUtes 1 

(2) Roman Colonise ... ... ... ... ... ... ... 4 

Pakt II. -modern COLONIZATION 

(1) In America, Africa and Asia ... ... ... ... ... ... 6 

(2) In Australasia ... ... .. ... ... ... ... 23 

Part III.— COLONIAL GOVERNMENT IN Ai;STRALlA 

(1) New South Wales 35 

(2) Victoria ... ... ... ... ... .. ... ... 51 

(3) Tasmania ... ... ... ... ... 58 

(4) South Australia ... . . ... ... 62 

(5) Western Australia ... .. ... ... ... .. 67 

(6) Queensland... ... ... ... ... ... 72 

(7) New Zealand . . ... ... ... ... ... ... 75 

Part IV.— THE FEDERAL MOVEMENT IN AUSTRALIA 

(1) The Germ of Federation 79 

(2) Earl Grejf^s Schemes 81 

(3) The Constitutional Committees of 1853 90 

(4) Australian Efforts, 1854-1863 92 

(5) The Tariff Question, 1855-1880 100 

(6) The Federal Council • 109 

(7) The Commonwealth Bill of 1891 115 

(8) The Fate of the Commonwealth Bill of 1891 143 

(9j The Popular Movement ... ... ... ... ... ... ... ... 150 

(10) Adelaide Session of the Convention, 1897 ... -■• .. 165 

(11) Consideration by the Legislatures ... ... ... ... 182 

(12) The Sydney Session of the Convention, 1897 ... ... ... 187 

(13) The Melbourne Session of the Convention, 1 898 .. . ... ... 194 

(14) The Referendum of 1898 206 

(15) Events in New South Wales 213 



TABLE OF CONTENTS. 



(16) The Premiers' Conference, 1899 

(17) Adoption of the Constitution, 1899 

(18) Enactment of the Constitution, 1900 

LIST OF MEMBERS OF CONVENTIONS. CONFERENCES, &c. 
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT .. 



COMMENTARIES ON THE CONSTITUTION 

TITLE 

PREAMBLE 

COVERING CLAUSES 

Chapter L-THE PARLIAMENT 

Part I. — General 

Part II. — The Senate 

Part III. — The House of Representatives 
Part IV. —Both Houses of The Parliament 
Part V.— Powers of The Parliament 

Chapter IL— THE EXECUTIVE GOVERNMENT 

Chapter IIL— THE JUDICATURE 

Chapter IV.— FINANCE AND TRADE ... 

Chapter V.— THE STATES ... 

Chapter VL— NEW STATES 

Chaiter VII.— miscellaneous 

CuAiTER VIIL— ALTERATION OF THE CONSTITUTION 
ALPHABETICAL SUBJECT INDEX 



PAGE. 

. 218 
. 221 

. 228 

. 253 
. 262 



281 
282 

311 

383 
384 
411 
445 
483 
508 
699 
719 
811 
927 
967 
978 
985 

997 



TABLE OF IMPERIAL STATUTES 

CITED LN THIS WORK. 

PAGE. 

21 Hen. 111. (1236-7) Confirmation of Charters 383 

3 Edw. I. (1272) First mention of Parliament 383 

15 Eclw. II. (1322) First recognition of Parliament by Crown 302 

4 Edw. 111.(1.330)0.14. Yearly Parliament 411 

25 Edw. III. (1352) st. 5. c. 13. Coinage 573 

36 Edw. III. (1362) c. 10. Yearly Parliament 411 

4 Hen. IV. (1402) c. 1. Confirmation of Charters 303 

7 Hen. IV. (1405) c. 15. Election of Knights of Shires 307 

9 Hen. IV. (1407) Confirmation of Charters : Statute of Gloucester 307 

1 Hen. V. (1413) c. 1. Parlianientarj- elections — residence 477 

8 Hen. VI. (1429) c. 7. House of Commons (electors) 307 

10 Hen. VI. (1432) c. 2. House of Commons (electors) 307 

23 Hen. VI. (1444-5) c. 14, House of Commons (electors) 307 

32 Hen. VIII. (1540) c. 16. Aliens 600 

34 and 35 Hen. VIII. (1542-3) c. 4. Bankruptcy 586 

35 Hen. VIII. (1543-4) c. 3. King's style 298 

43 Eliz. (1601) c. 2. Poor relief 321 

21 Ja. I. (1623) c. 3. Patent 596, 597 

3 Cha. I. (1627) c. 1. Petition of Right 316,318 

16 Cha. I. (1640) c. 1. Yearly Parliament 411 

c. 10. Star Chamber ; Privy Council ... 318, 502, 751 

12 Cha. II. (1660) Restoration Parliament 406 

16 Cha. II. (1664) c. 1^ Triennial Parliaments ... 411 

29 Cha. II. (1677) c. 3^ Statute of Frauds 322,558 

31 Cha. II. (1679) c. 2. Habeas Corpus 318, 5<>2 

1 Will, and Mary (1688) Convention declared a Parliament... ... ... ... 406 

c. 21. Lords Commissioners of Great Seal ... ... 480 

Sess. 2. c. 2. Bill of Rights 316,318,323 

6 and 7 Will, and Mary (1694) c. 2. Parliament— Triennial Act ... 411, 462 

7 and 8 Will III. (1696) c. 3. Treason 3-50 

c. 15. Parliament— Demise of Crown ... ... ... 462 

c. 22. Plantations— validity of laws ... ... 1, ^^7 

c. 25. Infant: Parliament ... 476 

12 and 13 WilL HI. (1700) c. 2. Act of Settlement 317, 318, 324, 478, 728, 731, 733 

1 Anne (1702) c. 2. Demise of Crown 462 

c. 8. Commissioners to negotiate union with Scotland ... 296 

6 Anne (1707) c. 11. Union of England and Scotland 298 

c. 41. Demise of Crown. Pension Place-holders 462, 493, 494 

8 Anne (1709) c. 21. Copyright 593 

10 Anne (17U)r,c. 31. House of Commons electors — clergj- ... ... ... 304 

1 Geo. I. St. 2 (17U)j|c. 4. Naturalization ... 478 

|,|c. 38. Parliament— Septennial Act 462 

4 Geo. I. (17liVc. 11. Transportation to American Colonies 29 

6 Geo. I. (171B1JC. 5. Dependency of Ireland on Great Britain ... 299 



TABLE OF IMPERIAL STATUTES. 



4 Geo. 
8 Geo. 
18 Geo. 
1 Geo. 
6 Geo. 
6 Geo. 

11 Geo. 

13 Geo. 

14 Geo. 



II. 

II. 

II. 
III. 
III. 
III. 

III. 
III. 
III. 



18 Geo. III. 



22 Geo. 



23 Geo. 

24 Geo. 
27 Geo. 



III. 



III. 
III. 
III. 



III. 
III. 
III. 



31 Geo. 

33 (Jeo. 

37 (ieo. 

39 and 40 Geo. 

54 Geo. Ill, 

59 Geo. Ill 

1 and 2 Geo. IV 



3 Geo. 

4 Geo. 
9 Geo. 



10 Geo. 
1 Will 



IV. 
IV. 
IV. 



IV. 
IV. 



c. 21. 
c. 13. 
c. 18. 
c. 23. 
c. 12. 



1731) 
1735) 
1745) 
1760) 
1765) 
1766) c. 11. 

c. 12. 

c. 42. 

c. 21. 

c. 58. 

c. 83. 

c. 12. 



1770) 
1773) 
1774) 

1778) 

1782) 



British Subject ... 

Copyright Engravings ... 

House of Commons Electors — clergy , 

Commissions and salaries of Judges 

Stamp Tax (America) ... 

Repeal of Stamp Tax (America) 

Declaratory of right to tax the colonies 

Grenville Act ; Election Petitions 

British Subject ... 

Residence in constituency 

Canada — Quebec Act 

Colonial Charter— Declaration that Great 

will not tax th(3 colonies ... 
Contractors : House of Commons 



45. 
c. 53. 

c. 75. Patent Offices in Colonies 

1783) c. 28. Ireland 

1784) c. 56. Transportation .. 
1787) c. 2. New South Wales Foundation 

c. 13. Consolidated Fund 

c. 38. Designing and printing of linens 

1791) c. 31. Canada Upper and Lower 

1793) c. 13. Act of Parliament — Commencement . 

1797) c. 97. Treaty with United States 

III. (1800) c. 67. Union of Great Britain and Ireland 

1813) c. 15. (Recovery of debts in N.S.W.) 

1819) c. 12. " Sturges Bourne's Act "—Poor Rates 

c. 114. Duties in New South Wales 

(1821) c. 8. Duties in New South Wales 



Repeal of Act for securing dependency of Ireland ... 299 

730, 733 
... 299 
29,35 
... 35 
... 812 
593, 598 
22, 310, 512 
... 331 
... 769 
... 299 
... 348 
284 
... 36 
... 36 
... 36 



PAGE. 

478, 599 
... 593 
... 304 
... 728 
... 21 
... 22 
... 22 
... 496 
478, 599 
... 477 
... 511 
Britain 

318, 348 
... 493 



1822) c. 96. Duties in New South Wales 

1823) c. 96. Justice in New South Wales and Van Diemen's Land 36, 59 
1828) c. 61. Public Houses ... 281 

c. 8.3. Government of New South Wales and Van Diemen's 

Land 37,59,344,366,462,512,808 

22. Western Australia - Foundation 33,68,512 



1829) c. 
1830-1) 



Sand 4 Will. IV. (1833) 



4. (Demise of Crown) 
c. 20. (Lower Canada— validity of laws) 
2 and 3 Will. IV. (1832) c. 4.5. Reform Ast -England 

Hou-so of Commons (offices)— Speaker 
Statute of Limitations 

Judicial Committee 330, 

Plantations— vali<lity of laws 
Bank of England : Bank Note 
South Australia— Foundation 
Recovery of Debts— Ireland 

Oaths 

Copyright (lectures) 
M u u ici pal Corporations 
Patents 

c. 59. International Copyright 

c. 60. South Au.stralia 

c. 38. Election Petitions . 

c. 67. Patents 



4 and 5 Will 

5 and 6 WiU 



IV. 
IV. 



(1834) 
(18,35) 



c. 105. 
0. 27. 
c. 41. 
0. 59. 
c. 98. 
c. 95. 
0. 55. 
c. 62. 
c. 66. 
c. 76. 
c. 83. 



1 and 2 Vic. (1838) 

2 and 3 Vic. (1839) 



... 462 
... 348 

298, 307, 308 
... 480 
... 462 

730, 751, 766 
... 348 
.. 575 
63, 352, 374 
... 322 
... 348 
... 593 
... 475 
... 596 
... 593 
... 352 
... 496 
... 597 



TABLE OF IMPERIAL STATUTES. 



XV. 



3 and 4 Vic. 


(1840) 


c. 9. 
c. 35. 
c. 62. 

c. 105. 


4 and 5 -Vic. 


(1841) 


c. 13. 


5 and 6 Vic. 


(1842) 


c. 45. 
0. 61. 
c. 76. 

c. 100. 


6 and 7 Vic. 


(1843) 


c. 34. 
c. 38. 
c. 73. 
c. 94. 


7 and 8 Vic. 


(1844) 


c, 12, 
c. 66. 
c. 69. 
c. 74. 


8 and 9 Vic. 


(1845) 


c. 20. 
c. 109. 


9 and 10 Vic. 


(1846) 


0.77. 
c. 93. 
c. 103. 


10 and 11 Vic. 


(1847) 


c. 95. 


1 1 and 12 Vic. 


(1848) 


c. 12. 
c. 42. 


12 and 13 Vic. 


(1848-9) c 95. 






c. 96. 


13 and 14 Vic. 


(1850) 


c. 21. 
c. 59. 


14 and 15 Vic. 


(1851) 


c. 83. 
c. 99. 
c. 100. 


15 and 16 Vic. 


(1852) 


c. 12. 
c. 72. 
c. 83. 


16 and 17 Vic. 


(1853) 


c. 48. 


17 and 18 Vic. 


(1854) 


c. 31. 
c. 104. 
c. 125. 


18 and 19 Vic. 


(1855) 


c. 54. 

c. 55. 
c. 56. 

c. 84. 


20 and 21 Vic. 


(1857) 


c. 3. 


21 and 22 Vic. 


(1858) 


c. 70. 


22 and 23 Vic. 


(1859) 


c. 12. 


23 and 24 Vic. 


(1860) 


c. 34. 
c. 122. 



Publication of Parliamentary papers 503 

Canada — Union of Upper and Lower 23,512 

To Separate Islands (New Zealand) from New South 

Wales 75, 344, 512 

Recovery of Debts — Ireland ... ... ... ... 322 

Loan to South Australia... ... ... ... ... 352 

Copyright 301, 348, 349, 594, 595, 600, 602 

South Australia : Crown Colony 64,352 

New South Wales : Representative Legislature — Van 

Diemen's Land, .38, 52. 53, 59, 60, 72, 74, 344, 

375, 385, 512, 688, 689, 690, 691, 692, 694, 976 
CopjTight of Designs ... ... ... ... ... 598 

Fugitive Offenders 618,619 

Judiciail Committee ... ... .. ... ... 330 

Solicitors 809 

Foreign Jurisdiction ... ... ... ... ... 618 

Copyright— International ... ... ... 594, 770 

Aliens and Naturalization ... ... 478, 600, 601 

Judicial Committee 330, 741, 743 

AssenttoBills— N.S.W. and V.D.L 690 

Railway Clauses Consolidation 905, 90S, 910 

Wagers ... ... ... ... ... ... ... 558 

House of Commons (officers) ... 480 

(Lord Campbell's Act — Death by Accident) 281 

New Zealand Government .. ... ... 76 

Copyright (colonial) 49,594 

Treason — Felony ... ... .. ... ... ... 492 

Justices of the Peace ... ... . ... •■• 618 

Judgments — Ireland ... ... .. ... ... 322 

Offences on the high seas ... ... 358 

Abbreviation of language in Acts of Parliament ... 475 
Australian Colonies Act (N.S. W., S.A , V.D.L., Vic, 

W.A.), 40, 52, 53. 56, 60, 61, 64, 65, 68, 72, 74, 

88, 90, 104, 344, .352, 385, 512, 690, 888, 976 



Judicial Committee 

Evidence 

Criminal Procedure 

Copyright (international) 

New Zealand — Constitution 

Patents 

Coin, Colonies 

Railway and Canal Traffic 

Merchant Shipping 

Common Law Procedure 



330 

348 

808 

59.3, 594 

76 

597 

49 

896, 906-10, 912 
...49,355, 359 
781 



New South Wales— Constitution, 44, 72, 463, 504, 

512, 690, 889, 976 
Victoria— Constitution 45, 46, 57, 463, 504, 512, 690, 704 
Australia — Crown Lands Sale ... ... ... ■• 61 



House of Commons (offices) —Deputy Speaker 

Transportation : Cessation 

Cop vright of Designs 

Evidence ... 

Petitions of Right 

Homicide: Sea 



4S0 
61 
598 
3J8 
805 
49 



xvi. TABLE OP IMPERIAL STATUTES. 



24 and 25 Vic. 


(1861; c. 44. 




c. 134. 


25 and 26 Vic. 


(1862) c. 63. 




c 89. 


26 and 27 Vic. 


, (1863) c. 24. 


27 and 28 Vic. 


(1864) c. 24. 


28 and 29 Vic. 


(1865) c. 14. 




c. 63. 




c. 64. 


29 and 30 Vic. 


(1866) c. 19. 




c. 74. 


30 and 31 Vic. 


(1867) c. 3. 




c. 45. 




c. 102. 




c. 124. 


31 Vic. 


(1868) c. 29. 


31 and 32 Vic. 


(1868) c. 72. 




c. 105. 




e. 125. 


32 and 33 Vic. 


(1869) c. 11. 




c. 15. 




c. 43. 




c. 55. 




c. 71. 


33 and 34 Vic. 


(1870) c. 10. 




c. 14. 




c. 23. 




c. 52, 




c. 91. 




c. 102. 


34 and 35 Vic. 


(1871) c. 28. 


35 and 36 Vic. 


(1872) c. 19. 


36 and 37 Vic. 


(1873) c. 22. 




c. 48. 




c. 60. 




c. 66. 




c. 88. 


38 and 39 Vic. 


(1873) c. 38. 




c. 51. 




c. 53. 




c. 77. 


39 and 40 Vic. 


(1876) c. 59. 




c. 80. 


40 and 41 Vic. 


(1877) c. 47. 


41 and 42 Vic. 


(1878) c. 67. 




c. 73. 


42 and 43 Vic. 


(1879) c. 75. 


43 and 44 Vic. 


(1880) c. 9. 



South Australia and Queensland Boundaries 

62, 374, 375, 976 
Bankruptcy ... ... ... ... ... . 592 

Merchant Shipping ... . ... ... 355,359 

Companies 322, 591, 605 

Vice-Admiralty Courts . 400,798 

Naval Prize 797 

Colonial Naval Defence ... ... ... ... 49, 695 

Colonial Laws Validity ... 50, 229, 230, 232, 2.35, 236, 241, 
245, 296, 318, 347-352, 364, 631, 650, 736 

Marriage ... ... ... ... 50 

Parliament — Oath ... ... ... ... ... 488 

Reservation of Customs Bills ... ... ... ...40,59 

British North America Act ... 23, 291, 294, 335, 347, 

349, 509, 544, 705, 720, 798, 832 (&c., see Index) 

Vice-Admiralty Courts Amendment ... ... 400,798 

Demise of Crown — Representation of the People of 

England 298,308,462,463 

124. (Merchant Shipping) 358 

(Medical Practitioners— Colonies) ... ... ... 350 

Promissory Oaths... ... ... ... .. . 488 

Hudson's Bay Company .. ... ... ... ... 350 

Election Petitions ... 496 

Merchant Shipping ... ... ... ... 50, 358 

House of Commons — Pensions ... ... ... ... 493 

Diplomatic Salaries ... ... ... ... ... 493 

Municipal Corporation (Elections) 475 

Bankruptcy ... .. ... 592 

Coinage 573,575 

Alien : British Subject and Naturalization ... 50, 478, 

491, 600, 601, 603 

Felony 492 

Extradition 50, 635, 636, 770 

Clerg3^ : House of Commons — Disabilities 304 

Naturalization — Oaths ... ... ... ... 491 

(British North America— Amending) ... 350, 514, 973 

Pacific Islands 6.37 

Australian Colonies Duties .50, 

106, .393, 399, 691, 697-8 

Regulation of Railways 896-7,910 

Extradition 769 

Judicature 769 

Slave Tratle 797 

Canada — Privileges 506 

Pacific Islands 637 

Canada : Copyright ... 595,694 

(Judicature) 322 

Appellate Jurisdiction 751 

Merchant Shipping 50 

South African Union 114 

Foreign Jurisdiction 618 

Territorial Waters Jurisdiction .359 

Election Petitions... .. ... ... ... 496 

Greenwich Time 332 



TABLE OF IMPERIAL STATUTES. 



44 and 45 Vic. 


(1881) c. 3. 




c. 58. 




c. 68. 




c. 69. 


45 and 46 Vic. 


(1882) c. 50. 




c. 76. 


46 and 47 Vic. 


(1883) c. 51. 




c. 52. 




c. 57. 


48 Vic. 


(1884) c. 3. 


48 and 49 Vic. 


(1885) c. 23. 




c. 60. 




c. 63. 


49 and 50 Vic. 


(1886) c. 33. 




c. 37. 


50 and 51 Vic. 


(1887) c. 70. 


51 and 52 Vic. 


(1888) c. 25. 




c. 32. 




c. 41. 




c. 46. 




c. 50. 


.52 and 53 Vic. 


(1889) c. 63. 


53 and 54 Vic. 


(1890) c. 9. 




c. 26. 




c. 27. 


57 and 58 Vic. 


(1894) c. 60. 


58 and 59 Vic. 


(1895) c. 34. 




c. 44. 


m and 64 Vic. 


(1900) c. 12. 



PAGE. 

Judicial Committee 330,751 

Army Act, 1881 51,117 

House of Commons — Election Petitions ... ... 496 

Fugitive OfiFenders 619,696 

Municipal Corporations... ... ... ... . 476 

Merchant Shipping 51,360 

Corrupt and Illegal Practices Prevention ... ... 497 

Bankruptcy .. 322,592 

Patents, Designs, and Trade Marks .. ... 597, 598 

Representation of the People ... ... ... 298, 308 

Redistribution of Seats 298,308 

Australasia— Federal Council .. 230, 263, 311, 345, 362, 

363, 376-7, 570, 613, 614, 629 

Patents ... ... ... ... ... ... 597 

Copyright 594, 596 

Patents, Designs, and Trade Marks ... ... ... 598 

Judicial Committee ... ... ... ... 330, 751 

Railway and Canal Traffic 745, 896-7, 906, 908-10 



Imperial Defence — Australia ... 

Local Government 

Declaration : Oath 

Patents, Designs, and Trade Marks 

Acts of Parliament — Interpretation 



117,562 

475 

488 

598 

.230, 322, .332, 352, 
362, 475, 777, 792-3 

51 

71 

400, 696, 797-9 



Merchant Shipping 

Western Australia : Constitution 

Colonial Courts of Admiralty ... 

Merchant Shipping ... 49,50,51,229,230,232, 

301, 355, 357, 358, 3.59, 360, .362, 569, 651 

Colonial Boundaries 263,311,378-9,640,975 

Judicial Committee Amendment 244,751 

Commonwealth of Australia Constitution 249, 262, 281 



1^> 



TABLE OF CASES 

CITED IN THIS WORK. 

Note ok American' Reports. — The first 90 volumes of the reports of the Supreme 
Court of the United States are cited by the names of the different reporters (Dallas, 
Cranch, Wheaton, Peters, Howard, Black, Wallace). From vol. 91 they are known as 
the United States Reports (cited thus : — " 176 U.S."). The early reports of the Federal 
Circuit Courts are cited by the names of the reporters, but since 1880 they are all 
contained in the Federal Reporter (cited "Fed. Rep."). 

Selected cases from the American State Courts down to 1869 are collected in the 
"American Decisions" (100 vols.); from 1870 to 1887, in the "American Reports" 
(60 vols.); and from 1888 to the present time in the "American State Reports." 
Under the national reporter s\'stem, the decisions of the highest courts of the different 
States are now contained in the following group of reports : — Atlantic Reporter, 
North-eastern Reporter, North-western Reporter, Pacific Reporter, Southern Reporter, 
South-eastern Reporter, South-western Reporter. 



FAGK. 

Abercrombie v. Dupuis (jurisdiction — residence), 1 Cranch (U.S.) 343 ... ... 777 

Ableman v. Booth (suits by and against United States), 21 How. (U.S.) 506 ... 773 
Ackman r. Town of Moncton (provincial tax on federal employees), 24 N. 

Bruns. 103 ... ... ... ... ... . ... ... ... ... 553, 554 

Addington r. Cann (Crown, when bound by legislation), 3 Atk. 154 ... ... 322 

Add vston Pipe and Steel Co. v. United States ( commerce —monopolies), 175 

U.S. 211 538-9 

Ah Toy V. Musgrove (see Chung Toy I'. Musgrove) 

Albany Bridge Case (interstate rivers — federal control), 2 Wall. (U.S.) 403 ... 886 

Allan, Exp. : ;e Victoria Steam Nav. Board, 7 V.L.R. 248 («cc Victoria Steam 

Nav. Board, He) 

Allan V. Pratt (Privy Council — special leave to appeal), 13 App. Ca. 780 ... 761 
Allen V. Hanson (winding-up foreign companies), 16 Quebec L.R. 85 ; and 18 

S.C.R. (Can.)667 591,606 

Almy V. California (inter-state commerce — State tax on bills of lading), 24 

How. (U.S.) 169 847 

American Insurance Co. «'. Canter (territories — government), 1 Pet. (U.S.) 511 972 

American Publishing Co. v. Fisher (trial by jury), 166 U.S. 464 . ... 810 

Amory v. Amory (jurisdiction — citizens of different States), 95 U.S. 186 ... 777 

Anderson, Re (habeas corpus — jurisdiction of Queen's Bench), 30 L.J.Q.B. 129 781 

v. Dunn (legal tender— construction), 6 Wheat. (U.S.) 204 ... .. 575, 652 

Antelope, The (jurisdiction — penal laws of States), 10 Wheat. (U.S.) 66 ... 778 
Armour Packing Co. v. Snyder (police power -oleomargarine), 84 Fed. Rep. 

136 851 

Armstrong v. Carson (action on a judgment), 2 Dall. (U.S.) 302 . ... 963 

Ash V. Abdy (construction— statute), 3 Swans. 664 ... ... 365 

Ashbury v. Ellis (civil process — service) (1893), App. Cas. 339 ... 616 

Ashby I'. White (franchise). Smith's L. Cas. Vol. I. 268 ... ... ... ... 471, 756 

Asher r. Texas (State tax on inter-state commerce), 128 U.S. 129 847, 858 

Attorney-General v. Bradlaugh (parliamentary oath), 14 Q.B.D. 667 488 

V. Great Ea.stern Ry. Co. (marginal note'i, 11 Ch. D. 449 ... 282 

V. Powis (preamble) 1 Kav 186 ; 2 Eq. R. 566 285 

r. Sillem (creation of right of appeal), 10 H.L.C. 720 ... 746 

r. Weymouth (title— statute), Ambl. 23 281 

for Canada v. Attorney -General of Ontario (pardoning 

power), 3 Ont. App. 6 ; 19 Ont. Rep. 6 390,702,930,983 

Attomev-General for Canada v. Flint ( Vice-Admiralty Courts — power to vest 

jurisdiction), 3 S.C. (Nov. Scot.) 453; 16 S.C.R. (Can.) 707 709, 803 



TABLE OF CASES. 



PAGE. 

Attorney-General of New South Wales v. Rennie (payment of members) 

(1896), App. Cas. 376 500 

Attorney-General of Ontario v. Attorney-General of Canada (assignment for 

creditors) (1894), App. Cas. 189 588,591 

Attorney-General of Ontario v. Attorney-General for Canada (Liquor Prohi- 
bition) (1896), App. Cas. 348 513, 516, 547, 548 

Attorney-General of Quebec v. Murray, 25 Lower Can. Jur. 208 .. 761 

of Queensland v. Gibbon (non-attendance — parliament), 12 

App. Cas. 442 442,482 

Austin V. Boston Aldermen (statutes unconstitutional in part), 7 Wall. (U.S.) 

694 796 

Australian Smelting Co. v. Brit. Broken Hill Propr. Co. (appeal to Privy 

Council), 23 V.1..R. 643, 20 A.L.T. 46 738 

Ayers, i?e (jurisdiction — suit against State), 123 U.S. 443 ... ... ... 774 

Baiz, ^e (jurisdiction-proof of), 135 U.S. 403 772 

Baker v. City of Portland (Chinese labour- restrictive law) (U.S.), L.T. 18th 

Oct., 1879, p. 403.- Todd, Gov. in Col. 2nd ed. p. 196 628 

Baldwin j?. Bank of Newbury (State insolvency laws), 1 Wall. (U.S.) 234 ... 587 

V. Franks (statute unconstitutional in part), 120 U.S. 678 ... ... 796 

V. Hale (bankruptcy, discharge by State law), 1 Wall. (U.S.) 223 587 

Bank of Australasia v. Nias (civil process— service), 16 Q.B. 717 ... ... 616 

of Toronto v. Lambe (federal corporations — taxation), 12 App. Cas. 575 

547, 553, 554 

of United States v. Devaux (jurisdiction— corporation - not a citizen), 5 

Cranch. (U.S.)61 777 

Banks r. Orrell (civil process — service), 4 V.L.R. (L.) 219 ... ... ... 614 

Banks, The v. Mayor (federal certificates to creditors subject to State taxation), 

7 Wall. (U.S.) 16 949 

Bank Tax Case (federal stock exempt from State taxation), 2 Wall. (U.S.) 200 559, 949 

Barbier v. Connolly (State regulation of laundries) 113 U.S. 27 .. ... 853 

Barney v. Baltimore (jurisdiction — resident ot territory), 6 Wall. (U.S.) 280 777 

V. McCreery (qualification of members — laws), CI. and Hall (U.S.) 176 440, 475 

Barque (/7iw.sa7i, The (commerce -navigation), 2 Story (U.S.) 455 ... ... 540 

BaiTon r. Baltimore (trial by jury), 7 Pet. (U.S.) 243 808 

r. Burnside (corporations— conditions of doing business), 121 U.S. 186 

Barrow V. Wadkin (alien), 24 Beav. 1 ... ... ... ... ... 600 

— r. Wadkin (statute — punctuation), 24 Beav. 327 282 

Barry, Re (federal jurisdiction— common law offences), 136 U.S. 597 787, 788 

Bartemeyer v. Iowa (police power— breweries). 14 Wall. (U.S.) 26 853 

Barton v. Taylor (parliamentary privilege), 1 1 App. Cas. 197 504 

Bauman ». Ross (just compensation), 167 U.S. 548 641 

Baxendale r. ilastern Counties R. Co. (reasonable rate — common law), 27 

L.J.C.P. 1.37 ... 916 

V. Great Western R. Co. (delivery charges — undue preference), 28 

L.J.C.P. 69 ... .. .. ^ .„ ... ... 908 

Great Western R. Co. (delivery charges - undue preference), 28 



L.J.C.P. 81 908 

Beadell v. Eastern Counties R. Co. (railway cab-stand— undue preference), 26 

L.J.C.P. 2.50 „ ... ... 907 

Beadon r. King (construction-statute), 22 L.J. Ch. Ill 365 

Beal r. Ford (residence), 3 C. P. D. 78 776 

lieflard, /fc (precedence of .Judges), 7 Moo. P. C. 23 ... 727 

lieers v. Arkansas (jurisdiction— suit against State), 20 How. (U.S.) 527 ... 774 

Belanger v. Caron (plea of unconstitutionality), 5 Quebec L.R. 25 693 

Bell ?•. Holtby (construction -statute), L.R. 15 Eq. 178 364 

Bell Telephone Co., /^e (patent— tribunal), 7 Ont. Reps. 605 598 

Bentley r. Rotherhani Local Hoard (title -statute), 4 Ch. 1). 588 281 

Beresford-Hope r. Lady Sandhurst (election— women), 23 Q.B.D. 79 475 

Bethell t>. Hihlvard (marriage -domicile), 38 Ch. D. 220 608 

Bingham »;. CatKit (jurisdiction— residence of parties), 3 Dall. (U.S.) 382 ... 777 

Hirtwhistle r. Vardill (marriage— domicile— title of statute), 7 CI. and Fin. 895 281 
Blake p. McClung (corfMiration not citizen), 172 U.S. 239 .. .. ... 777,961 

f- -Midland Ry. Co. (title— statute), 18 Q.B. 93 ... ... '.. ... 281 

Blanchard v. Sprague (patent terms and conditions), 2 Story (U.S.) 164 ... 597 

Bledsoe's Cawj (resignation of Senators), CI. and Hall (U.S.) 869 442 

Boom Co. f. Patterson (resumption -compensation -jurisdiction), 98 U.S. 403 785 

Borgmeyer V. Idler (construction of treaty), 159 U.S. 408 770 



TABLE OF CASES. 



PAGE. 

Bowman v. Chicago, &c., R. Co. (police power— inter-state free trade). 125 

U.S. 465 518, 528, 536, 537, 848, 851, 856 

V. Farnell, 7 N.S.W. L.R. I (see Famell v. Bowman) 

Boyer, ^xjff. (artificial stream — federal control), 109 U.S. 629 .. ... .. 883 

Boynton v. Blaine, 139 U.S. 306 (see U.S. ex rel. Boynton v. Blaine) 

Bradfield r. Roberts (establishment of religion), 175 U.S. 291 ... ... ... 953 

Brashear r. Mason (mandamus to federal officer), 6 How. (U.S.) 92 ... 782 

BreuU, Exp., re Bowie (residence -defined), 16 Ch. D. 484 960 

Bridge Co. v. United States (federal control of bridges), 105 U.S. 470 ...517, 641, 884, 970 
Brig Wilson, The v. United States (commerce includes conveyance), 1 Brock. 

(U.S.) 423 515,540,873 

Brimmer v. Rebman (commerce — State cannot prohibit importation), 138 U.S. 

78 851,853,944 

Briscoe v. Bank of Kentucky (legal tender — construction), 11 Pet. (U.S.) 257 575 
Briton Medical Life Ass., lie (federal power foreign insurance), 12 Ont. 

Reps. 441 592, 606 

Broder v. Water Co. (riparian rights —reasonable use). 101 U.S. 274 ... ... 890 

Broderick's Executor v. Magraw (legal tender), 8 Wall. (U.S.) 639 575 

Brook, i?e (service of civil process), 33 L.J. C. P. 246 .. ... ... ... 614 

17. Brook (marriage—deceased wife's sister), 9 H.L. Cas. 193 ... ... 609 

Brown v. Houston (State tax on exports), 114 U.S 622 ... 845, 846, 848, 855, 856, 943 

V. Maryland (State tax on imports), 12 Wheat. (U.S.) 419 

286, 515, 520, 524-5. 527, 528, 537. 539, 846, 943-4, 959 
Brownsville Commissioners v. League (mandamus to federal officer), 129 U.S. 

493 782 

Bryant v. Reading (appeal — "final and conclusive "), 17 Q.B.D. 128 746 

Buchanan v. Rucker (civil process — ser\nce), 9 East 192 ... ... ... ... 616 

Buckley v. Edwards (appointment of Judges) (1892), App. Ca. 387 727, 729 

Buffington v. Day, 11 Wall. (U.S.) 113 (see Collector v. Day). 

Burdett v. Abbot (Parliamentary privilege —contempt), 5 Dow 165 ; 14 East 1 502 

Buron i>. Denman (Act of State), 2 Exch. 167 709 

Burrow-Giles Litho. Co. v. Sarony (copyright in works of art). 111 U.S. 53 ... 596 

Caird r. Sime (copyright), 12 App. Cas. 326 593 

Caldwell t'. Van Vlissengen (patents), 21 L.J. Ch. 97 597 

Caledonian R. Co. v. North British R. Co. (construction — statute), 6 App. 

Cas. 114 365 

Calhoun v. Lanaux (federal jurisdiction — how far exclusive), 127 U.S. 6.34 ... 803 
California v. Central Pacific R. Co. (Federal power to construct railways — 

State tax on federal franchise), 127 U.S. 1 516, 518, 520", 541, 552, 847 

Californian Fig Syrup Co. 's trade mark (1888), 40 Ch. D. 620 599 

CaUender, Sykes and Co. v. Colonial Sec. of Lagos (application of English 

bankruptcy law) (1891), App. Ca 460 592 

Calvin's Case (natural-born subject), 7 Coke's Reps 1 ... 478,599 

Canada Sugar Refinery Co. v. The Queen (importation — when complete) 

(1898), App. Ca. 735 859 

Canadian Pacific Nav. Co. v. Vancouver City (quarantine), 2 Brit. Colu. Rep. 

193 568 

Cannon v. New Orleans (wharfage charge— State law), 20 Wall. (U.S.) 577 .. 5.36, 858 

Capital Traction Co. y. Hof (trial by jury), 174 U.S. 1 810 

Cardwell i'. Bridge Co. (navigable river— bridge), 113 U.S. 205 858, 885 

Carew, Exp. (leave to appeal— criminal case) (1897), App. Ca. 719 752 

Carnatica (Nabob of) v. East India Co. (judicial and political powers), 1 Ves. 

J. 371; 2 »d. 56 723 

Cameali7.Banks(jurisdiction—citizensof different States), 10 Wheat. (U.S.) 181 777 
Carpenter v. Pennsylvania (pardoning power — Federal bankruptcy laws — 

Constitution— construction), 17 How. (U.S.) 456 - 587 

Carpenters' Co. v. Hay ward (questions of fact and law), 1 Dougl. 374 744 

Carter v. Molson (Privy Council— special leave to appeal), 8 App. Ca. 530 .. 761 

Carter Medicine Co. 's Trade Mark (1892), 3 Ch. 472 599 

Cartledge v. Cartledge (custody of children), 31 L.J. Mat. 85 611 

Chavasse, ^a: par^e, re Grazebrook (proclamation), 34 L.J. Bky. 17 331 

Cherokee Nation v. Southern Kansas R. Co. (railway construction — federal 

authority— compensation), 135 U.S. 641 .. .. 520, 541, 641, 874, 921 
Chicago and Alton R. Co. v. Wiggrins Ferry Co. (judicial notice of State laws), 

119 U.S. 615 ... .. 746 

Chicago and Grand Trunk R. Co. v. Wellman (validity of statute— friendly 

suit), 143 U.S. 339 767 



TABLE OF CASES. 



PAGK. 

Chicago Burlington, &c., R. Co. v. Iowa (railroads— State regulation), 94 

U S 155 ••• •■■ ••• ••• •• ••• ••• ■•• ^^"^ 

Chinese (American) Exclusion Case, 130 U.S. 581 .. ... 628,769 

Chinese (Brit. Columbia) Tax Case, Todd Pari Gov. Col. 2nd ed. pp. 194 and 557 62/ 

Chisholm v. Georgia (jurisdiction -suits against States), 2 Dall. (U.S.) 419 

286, 336, 774, 806 

Christmas v. Russell (State judgments conclusive), 5 Wall. (U.S.) 290 963 

Christy, Exp. (prohibition to inferior court), 3 How. (U.S.) 292 783 

Chunc Toy v. Muserove (aliens— exclusion), 14 V.L.R. 349; (1891) App. 

(fas. 272 . 390, 391, 600, 624, b26, 708, 710 

Church of the Holy Trinity v. United States (Sunday— Christian religion), 

143 U.S. 457 ... ••• 289,290,952 

Chy Lung v. Freeman (State tax on foreign passengers), 92 U.S. 275 623, 855 

Cincinnati, &c., R. Co. v. Inter-state C.C. (objects of Inter-state Commerce 

Act — commission an executive body), 162 U.S. 184 ... 898, 900, 911, 915 

Cissel V. McDonald (inhabitant of federal territory— status), 16 Blatch. (U.S.) 

150 659 

Citizens' Ins. Compy. v. Parsons (insurance contracts— provincial law), 

7 App. Cas. 96 544,547,583,585 

Civil Rights Cases (judicial power— to declare laws invalid), 109 U.S. 3 ... 792 

Claflin v. Houseman (federal jurisdiction— how far exclusive), 93 U.S. 130 ... . 803 

Clark V. Barnard (jurisdiction — suit against State), 108 U.S. 436 ... ... 774 

Clarke and the Union Fire Ins. Co., Jie (winding-up— federal control), 14 Ont. 

Reps. 618 591 

Clarke's Design, ^e (trade marks) (1896), 2 Ch. 38 598 

Clarke, ii/a; 7>ar<e (unconstitutional law — Aa6fias), 100 U.S. 399 .. ... ... 470 

Clarkson v. Ontai'io Bank (assignment for creditors), 15 Ont. App. Reps. 166 591 

Claydon v. Green (marginal note), L.R. 3 C.P. 511 ... ... 281 

Clayton v. Utah (federal territories— operation of laws), 132 U.S. 632 972 

Clegg V. Grand Trunk R. Co. (federal corporations— powers), 10 Ont. Reps. 

708 ... 579 

Clinton Bridge (the federal control of bridges), 10 Wall. (U.S.) 454 ... 517, 858, 884 
Clough V. Curtis (territorial courts— constitutionality), 134 U.S. 361 ... ... 382 

Clyde Nav. Trustees v. Adamson (Crown property exempt from taxation), 

4McQ. H.L. 931 322 

Clyde Nav. Trustees v. Laird (statute — construction), 8 App. Cas. 658 .. 365 

Coal Co. V, Blatchford (jurisdiction — citizens of different States), 11 Wall. 

(U.S.) 172 777 

Coe V. Errol (commerce— when it begins), 116 U.S. 517 519, 539, 846, 904 

Cohens v. Virginia (jurisdiction— suits against States — "arising under the 

Constitution"), 6 Wheat. (U.S.) 264 429,575,658,773,790,806 

Cole r. Cunningham (State records— faith and credit), 133 U.S. 107 962,963 

Collector V. Day (federal tax on salary of State officer), 11 Wall. (U.S.) 113 

551 555 734 950 
Collett V. Collett (naturalization— State law), 2 Dall. (U.S.) 294 ... ' ... ' '601 

Collingwood r. Pace (natural-born subject), 1 Vent. 413 478 

Collins V. New Hampshire (police power— prohibition of sale), 171 U.S. 30 ... 851 

V. Welch (construction— statute), 5 C.P.D. 27 364 

Collins Co. V. Brown (alien— trade marks), 3 Jur. (N.S.) 929 J 600 

I'. Reeves (alien— trademarks), 4 Jur. (N.S.) 865 600 

Colorado Central Mining Co. v. Turck (original jurisdiction), 150 U.S. 138 ... 785 

Colson r. I^ewis (jurisdiction— grants of different States), 2 Wheat. (U.S.) 377 801 

Commercial Bank of India, Re (British corporation — winding-up in colony), 

L.R. eEq. 517 .. ... .. 605 

Commercial Bank of South Australia, Re (winding-up), 33 Ch. D. 174 ... 606 

Commonwealth r. Smith (validity of law), 4 Binney (Penns.) 123 796 

Connell v. Neill and Co (service 'out of jurisdiction— British subject), 7 W.N. 

(N.S.W.)6 •" 615 

Conner V. Elliott (federal privileges and immunities), 18 How. (U.S.) 691 ... 960 

Cook V. Peimsylvania (inter-state commerce— State tax on auctioneers), 97 

U.S. 5(56 847,857 

Cooley r. Port Wardens (pilots— state control), 12 How. (U.S.) 299 

^ , 515, 516, 523, 629-30, 540, 657, 853, 858, 873 

Coomlxir r. Berks Justices (title— statute), 9 Q.B.D. 17 281 

Copeman r. (;allant (preamble), 1 P. Wms. 317 285 

Corfield v. Coryell (commerce defined— incidents), 4 Wash. (U.S. ) C.C. 371 516, 616, 959 
Corson r. Maryland (interstate commerce- State licenses), 120 U.S. 502 ... 847 



TABLE OF CASES. 



CotS V. Watson (provincial tax on assets in insolTency), 3 Quebec L. Reps. 

157 ; 2 Cartwright .343 553 

Covington and Cincinnati Bridge Co. v. Kentucky (inter-stat« railway rates), 

154 U.S. 204 521 

Cowan V. Milbourn (Christian religion), L.R. 2 Ex. 234 951 

Cox, Exp. (mandamus to officer of Crown), 14S.C.R. (N.S.W.) 287 782 

Crandall v. Nevada (State tax on passengers), 6 Wall. (U.S.) 35 ... 529, 958, 959 

Craufurd r. Att. -Gen. (Crown — bankruptcy), 7 Price 2 ... ... ... ... 321 

Crutcher v. Kentucky (foreign express companv — State licence), 141 U.S. 47 847 

Cucktield Burial Board, Jte (Crown— when bound), 24 L.J. Ch. 585 321 

Gushing i*. Dupuy (federal insolvency law— appeal to Pri\'y Council — *' final "), 

5 App. Cas. 409 588, 589, 746, 747, 760, 761 

Cuvillier »'. Aylwin (prerogative of appeal), 2 Knap 72 ... .. 746,761 

Daniel Ball, The (inter-state commerce —beginning and duration — navigable 

waters), 10 Wall. (U.S.) 557 515,517,519,882 

D'Arcy r. Ketchum (State judgment — when conclusive), 11 How. (U.S.) 165 963 

Davis V. Beason \biganiy and polygamy), 133 (U.S.) .3.33 939, 953 

V. Packard (ambassadors — " matters affecting'"'), 7 Pet. 275 ... ... 771 

r. Regina (appeal from State courts to Pri\-y Council), 1 Vic. R. Eq. 33 738 

Dean v. Dawson (appeal from State comls to Privv Council), 9 N.S.W. L.R. 

Eq. 27 .' 738 

Debs, Ee (enforcement of executive power by injunction), 158 U.S. 564 ... 965 

Decatur v. Paulding (mandamus to federal officer), 14 Pet. 497 782 

Deeming, jLxp. (leave to appeal— criminal case) (1892) App. Ca. 422 752 

De Geer v. Stone (natural-born subject), 22 Ch. D. 243 .. 478 

Delahoyd, Se (process civil, defined), 11 Ir. Ch. R. 404 616 

Delondre r. Shaw (copyright - foreigner), 2 Sim. 237 594 

Denaby Main CoUiervCo. v. Manchester R. Co. (group rates — equality clause — 

undue preference), 13 Q.B.D. 674; 147rf. 209 ; 11 App. Ca. 97 "74.5, 906, 908-9, 921 
Denton v. Manners (common law— when altered bv statute), 27 L. J. Ch. 199, 

623 .: .365 

Devine v. HoUoway (Cro\vn— demise j, 9 Week. Rep. 642 462, 463 

Dewhurst v. Coulthard (judiciary— extra-judicial opinions), 3 Dall. (U.S.) 409 766 

DiU, Ke (parliamentary pri\'ilege), 1 W. and W. (L.) (Vic.) 171 505 

V. Murphv (parliamentary privilege), 1 W. and W. (L.) (Vic.) 342; 1 

Moo. P.C. (N.S.)487 505 

Dillett, Be (leave to appeal -criminal case), 12 App. Ca. 4.59 752 

Dobbins v. Erie County (State tax on federal employee), 16 Pet. (U.S.) 435 

551 552 553 554 949 
Doe d. Bywater r. Brandling (preamble), 6 L..J. (O.S.) K.B 162 ... ' ... ' ' 285 

Duroure r. .Jones (natural-born subject), 4 Term Rep. 300 478 

Doggett v. Railroad Co. (federal corporation— sinking fund), 99 U.S. 700 ... 382 

Doherty r AUman (judicial discretion), 3 App. Ca 728 759 

Donald v. Scott (imported and domestic liquor - discrimination), 67 Fed. Rep. 

(U.S.) 854; 165 U.S. 58 947 

Donaldson 1-. Beckett (copyright), 4 Burr. 2408 593 

Dooley r. Smith (legal tender), 13 Wall. (U.S.) 604 575 

Dover r. Maestaer (prerogative of pardon), 5 Esp. 92 . ... 630 

Downham v. Alexandria Council (State tax on business). 10 WalL (U.S.) 173 856 

Doyle V. Continental Insurance Co. (insurance), 94 U S. .535 583 

f. Falconer (parliamentary pri\nlege), L.R. 1 P.C 328 504 

Dred Scott v. Sandford (citizenship jurisdiction), 19 How. (U.S.) 393 

286, 470, 602, 784, 956 
Dubuque, &c., R. Co. v. Richmond, 19 Wall. (U.S.) 584 (see Railroad Co. v. 

Richmond) 

Ducat V. Chicago (corporations -inter-state rights), 10 Wall. (U.S.) 410 ... 961 

Duncan v. Darst (State insolvency law— discharge), 1 How. (U.S.) 301 .. 587 

Durousseau v. United States (federal jurisdiction), 6 Cranch (U.S.) 307 ... 738 

Dynes r Hoover (naval and military law). 20 How. (US.) 65 564 

Eastern Counties Ry. Co. r. Marriage (heading— statute), 9 H.L. Cas. 32 ... 281 
Edwards' Case (resignation of members —notice to State Governor), CI. and 

Hall>U.S.)92 437 

Edye v. Robertson, 112 U.S. 580 (•see Head Monev Cases) 

Eilenbecker v. District Court (trial by jury), 134 U.S. 31 808 

Eldridge v. Trezevant (federal control of navigable waters). 160 U S. 452 ... 883 

Electors v. Bailey (inhabitant -definition), CI. and Hall (U.S.) 411 477 

AVtza A'et^A, The (navigation and shipping), 3 Queb. L.R. 143 874 



TABLE OF CASES. 



PAGE. 

Elkanv. Do La Juvenay (extra-territorial service), 22 A. L.T. 34 ... ... 615 

Ellis V. McHenry (bankruptcy- international), L.R. 6 C.P. 228 592 

Elphinstone v. Bedreechund (treaty — municipal rights), 1 Knapp 316 ... ... 769 

Emanuel v. Constable (preamble), 3 Russ. 4^36 ... ... ... ... ... 285 

Embrey v. Owen (riparian rights — reasonable use), 6 Exch. 353... ... ... 892 

Emert V. Missouri (State tax on sales), 156 U.S. 296 ... ... ... ... 848 

Ervine's Appeal (legislative power), 11 Penn. St. 256 ; 55 Amer. Dec. 499 ... 721 
Escanaba Co. v. Chicago (commerce —river wholly within a State — federal 

control— bridges), 107 U.S. 678 531,534,852,883 

Evans t?. Eaton (copyright), 3 Wheat. (U.S.) 454 597 

V. Hiidon (Provincial tax on salary of federal employee), 22 Lower Can. 

Jur. 268 ; 2 Cartwright 346 553 

Evershed v. London and N.W.R. Co. (competitive rates — gratuitous cartage — 

undue preference), 2 Q.B.D. 254, 3 id. 134, 3 App. Ca. 1029 906, 908 

Exchange, The v. McFaddon (federal power to exclude aliens), 7 Cranch (U.S.) 

116 564,628 

Exchange Bank of Canada v. Regina (Crown — priority of creditors), 11 App. 

Cas. 157 322 

Falkland Islands Co. v. Regina (prerogative of appeal), 1 Moo. P.C.N. S. 299 750 

i''a»ia. The (operation of treaty), 5 Rob. Adm. 106 ... ... ... ... 769 

Fargo V. Michigan (inter-state commerce defined— State tax), 121 U.S. 230 ... 517, 847 
Farnell v. Bowman (liability of Crown for tort), 7 N.S.W.L.R. 1 ; 12 App. Ca. 

643 805 

Fenton v. Hampton (parliamentary privilege), 11 Moo. P.C. 347 ... ... 604 

V. Livingstone (marriage — lex loci contractus) 3 McQ. H. L. 497 ... 609 

Fertilizing Co. v. Hyde Park (police powers— noxious trades), 97 U.S. 659 ... 853 

Ficklen v. Shelby Taxing District (State tax on business), 145 U.S. 1 849 

Firebrace ?;. Firebrace (divorce— jurisdiction), 47 L.J. Prob. 41 ... 611 

Fletcher 17. Peck (validity of laws), 6 Cranch 87 796 

V. Rhode Island, 5 How. (U.S.) (see License Cases) 

FongYue Ting t'. United States (treaty), 149 U.S. 698 769 

Ford V. London and S.W.R. Co. (special rates to carriers — undue preference), 

60 L.J.Q.B. 130 906 

Forsyth v. United States (government of territories), 9 How. (U.S.) 571 ... 972 

Foster v. Davenport (commercial marine — federal control), 22 How. (U.S.) 244 542 

V. Kansas (police power— breweries), 112 U.S. 201 853 

V. Neilson (treaty-law of the land), 2 Pet. (U.S.) 253 769 

V. Port Wardens (survey of trading vessels— State law), 94 U.S. 246 ... 943 

Fowler v. Lindsey (controversies between States), 3 Dall. 411 774 

Fox V. Ohio (currency law — offences), 5 How. (U.S.) 410 573 

Franconia, The : Reg. v. Keyn, 45 L.J.M.C. 17 ; 2 Exch. D. 63 (see Regina v. 

Keyn) 
Fredericton, City of v. The Queen (Provincial control over liquor traffic), 19 

N. Bmns, (3 Pugs, and Burb.) 139 ; 3 S.C.R. (Can.) 505 349, 543, 545 

Freight Tax Case (see State Freight Tax Case) 

Freme w. Clement (construction -statute), 44 L.T. 399 365 

Garden Gully, &c., Co. v. McLister (appeal from State courts to Privy 

Council), 1 App. Ca. 39 738 

Garland, Ex parte (oath— religion— State laws), 4 Wall. (U.S.) 333 ... 953 

Gamett, /^e (extent of maritime pc>wer), 141 U.S. 1 874 

Gartoii V. Bristol, &c., R. Co. (facility to carrier— undue preference), 28 

L.J.C.P. 306 _ .. ... 908 

Garton v. Great Western R. Co. (delivery charges - undue preference), 28 

L.J.C.P. 158 908 

Gas«ios v. Ballon (alien— naturalized— status), 6 Pet. (U.S.) 761 602 

Geddes, Exp., Re Mowat (sequestration— relation back), 1 Glyn and J. 414 ... 692 

Goer V. Connecticut (commorce— game laws), 161 U.S. 519 854 

Oenevtee Chief, The, v. Fitzhugh (admiralty jurisdiction), 12 How. (U.S.) 443 800 

(Georgia r. Stanton (judicial power— political question), 6 Wall. (U.S.) 50 ... 723 
Gibbons r. Ogdon (commerce defined ; Constitution— construction), 9 Wheat. 

(U.S.) 1 515, 516, 521-4, 525, 628, 536, 538, 578, 657, 796, 796, 904 

Gibson, Exp. (mandamus tfj officer of Crown), 2 N.S.W. L.R. 202 782 

— r. United States (federal control of navigable watei-s), 166 U.S. 269 ... 883 

Oilman v. Lockwofxl (bankruptcy— discharge by State laws), 4 Wall. (U.S. ) 409 687 
— — - V. Philadelphia (commerce-bridge), 3 Wall. (U.S.) 713... 631-2, 540, 852, 858 
Gleich, i?e (N./.) (extra-territorial jurisdiction), Todd, Pari. Gov. Col. 2nd 

''^- 303 618, 619, 630 



TABLE OF CASES. 



Gloucester Ferry Co. v. Pennsylvania (State tax on inter-state ferry company), 

114 U.S. 196 515, 534-6, 846, 852, 853, 855, 873, 885 

Goodwin v. Caraleigh Phosphate and Fertilizer Works (inspection laws), 119 

X. Carolina (U.S.) 120 _ 944 

Gordon, £xp. (prohibition to inferior court), 1 Black (U.S.) 503 783 

Gorely, Exp., re Barker (preamble to section), 34 L.J. (B.) 1 ... . 285 

Gosse't V. Howard (Parliamentary privilege — contempt), 10 Q.B. 359 502 

Gov. -Gen. of Dominion v. Four Pro^^nces (Canadian Liquor License Acts- 
validity), Wheeler, C.C. 144 ... ... ... 547 

Graham, Exp. (prohibition to inferior court). 10 Wall. (U.S ) 541 783 

Grand Junction R. Co., Re (incorporation of companies), 45 Upper Can. 

Q.B. 302 579 

Great Western R. Co, v. Sutton (special rates to carriers— undue preference), 

L.R. 4HL. 226 906 

Green, i?e (mandamus to federal officers), 141 U.S. 325 • 778 

1-. Regina (common law— when altered by statute), 1 App. Cas. 513 365 

V. Van Buskirk (State judgment— faith and credit), 7 V> all. (U.S.) 139 963 

Green Bay and Mississippi Co. v. Patten Paper Co. (federal control of navigable 

waters), 172 U.S. 58, 173 U.S. 179 ... ... 884 

Grimes v. Eddy (police power— exclusion of infected cattle), 126 Missouri 168 851 
Guckenheimer'r. Sellers (State tax on imports — original package), 81 Fed. 

Rep. (U.S.) 997 846 

Gulf, Colorado, and Santa Fe R. Co. v. Hefley (inconsistency of laws), 158 

U.S. 98 939 

Guyr. Baltimore (wharfage — inter-state free trade), 100 US. 434 532, 857 

Habeas Corpus Cases, 100 U.S. 371 {see Siebold, Exp.) 

Haggin V. Comptoir D'Escompte de Paris (foreign corporation), 23 Q.B.D. 519 605 

Hall V. London Brighton, &c., R. Co. (railway rates), 15 Q.B.D. 505 905 

Halton r. Cove (preamble), 1 B. and Ad. 538 284 

Hamilton r. Vicksburg, &;c., R. Co. (bridge— na\ngation), 119 U.S. 280 ^.. 858, 885 

Hammersmith and City R. Co. v. Brand (heading — statute), L.R. 4 H.L. 171 281 

Hampton v. McConner( faith and credit), 3 Wheat. (U.S.) 234 963 

Hanley I?. Donoghue (faith and credit), 116 U.S. 1 ... . ... ... 962 

Hans V. Louisiana (jurisdiction — suit against State), 134 U.S. 1 774 

Harding r. WilUams (preamble), 14 Ch. D. 197 285 

Harman r. Chicago (inter-state commerce— State licence), 147 U.S. 396 847, 849, 852 
Harris v. Cockermouth, &c., R. Co. (competition — undue preference), 27 L.J. 

C.P. 162 907 

Harris f. Hardeman (State judgment — faith and credit), 14 How. (U.S.) 334 963 

Harvey v. Famie (marriage — lex loci contractus), 8 App. Cas. 43 ... ... 609 

Hatch't;. Willamette Iron Bridge Co. (federal control over bridge), 6 Fed. 

Rep. .326 525 

Haybum's Case (extra-judicial opinions), 2 Dall. (U.S.), 409 ... ... ... 766 

Hays V. Pacific Mail Steamship Co. (State tax on vessels), 17 How. (U.S.) 596 858 
Head Money Cases (taxation of alien immigrants — treaties), 112 U.S. 580 

426, 520, 542, 550, 557, 769 

Becla Foundry Co. r. Walker (trade mark), 14 App. Cas. 550 598 

Henderson v. Major of New York (State tax on foreign passengers), 92 U.S. 

259 623,847,853,855,876 

Hepburn r. Griswold (legal tender), 8 Wall. (U.S.) 603 575,581 

Hill t;, Thompson (patent), 2 xVIoore 224 ^ 597 

V. United States (suits against United States), 9 How. (U.S.) .386 773, 806 

Hillimore v. Colbourne (provincial tax on federal employee), 32 Can. Law. J. 

Reps. N.S. 201 553 

Hine, The, v. Trevor (admiralty jurisdiction), 4 Wall. (U.S.) 555 800 

Hitz, i?a:/). (jurisdiction — proof of), 111 U.S. 766 ... -■ ... ... 772 

Hodge V. The Queen (provincial control over liquor traffic), 9 App. Cas. 117... 509, 546 

Hoge's Case (election laws), CI. and Hall (U.S.) 135 427 

Holbom Union v. Chertsey Union (residence), 54 L..LM.C. 53 -477 

Holmes 1-. Jennison (extradition). 14 Pet. iU.S). 540 ... 620,6.35 

Home Insurance Co. v. New York (State tax on federal bonds— invalid), 

134 U.S. 594 .. 5.59 

Hope Insurance Co. v, Boardman (jurisdiction — corporation not a citizen), 

5Cranch(U.S.)57 777 

Homer r. United States (treaty), 143 U.S. 570 ... 769 

Houston V. Moore (naval and military power — concurrent jurisdiction), 

5 Wheat. (U.S.) 1 565, 80a 



TABLE or CASES. 



Howe Machine Co. v. Gage, 100 U.S. 675 (see Machine Co. r. Gage) 

Huber v. Reily (State control over sufiFrage), 53 Penns. State Reps. 112 ... 468 

Hudson's Trade Marks (18S6), 32 Ch. D. 311 599 

Hunter r. Nockolds (title— statute), 19 L.J. Ch. 177 281 

Huse V. Glover (commerce — improvement of rivers), 119 U.S. 543 ... 540, 850,. 885 
Huson V. South Norwich (provincial control over liquor traflSc), 24 S.C.R. 

(Can.) 146 513 

Hvlton V. United States (direct taxes defined), 3 Dall. (U.S.) 171 550 

Illinois V. Illinois C. R. Co , 146 U.S. 387 {see State v. Illinois C.R. Co.) 
Inman S. S. Co. v. Tinker (inter-state commerce — State wharfage tax), 94 

U.S. 238 847,854 

Insurance Co. v. Massachusetts, 10 Wall. (U.S.) 566 (see Liverpool Insurance 

Co. V. Massachusetts) 
Insurance Co. v. Morse, 20 Wall. (U.S.) 445 (see Liverpool Insurance Co. v. 

Morse) 
Inter-State Commerce Commission v. Alabama Midland R Co. (commission 

may not prescribe rates), 168 U.S 144 521,745,898,912 

Inter-State Commerce Commission v. Baltimore and Ohio Co. (power of the 

commission — wholesale rate — undue preference), 145 U.S. 263 521, 905, 911, 914 
Inter-State Commerce Commission v. Brimson (power of commission to 

summon witnesses), 154 U.S. 447 521,898,903 

Inter-State Commerce Commission v. Cincinnati, &c., R. Co. (powers of 

commission— unduly low rates), 167 U.S 479 898,900,912,916 

Intor-State Commerce Commission v. Detroit Grand Haven, &c., R. Co. 

(competition — undue preference), 167 U.S. 633 ... ... ... ... . 912 

Iron Clay Brick Manuf. Co., Rf (bankruptcy — winding up— provincial laws — 

validity), 19 Ont. Keps. 113 589 

Isaacson v. Durant (aliens). 17 Q.B.D. 54 ... ... .. ... ... ... 478 

Jackson, Ex parte (post offices— lotteries — federal power), 96 U.S. 727 ... 560 

Jeflerys f. Boosey (copyright), 4 H L. Cas. 815 ... ... ... ... ... 593 

Johnston v. Minister of St. Andrew's Church, Montreal (appeal to Privy 

Council— " final"), 3 App. Ca. 159 746,747,752 

Jolly V. Terre Haute Draw-bridge Co. (vessels carrying federal commerce, 

protected), 6 McL. (U.S ) 237 541 

Jones t'. lyeague (jurisdiction — resident of State), 18 How. (U.S.) 76 777 

Juilliard V. Greenman (legal tender— construction), 110 U.S. 421 ... 559,575,581 
Junction R. Co., i?e, 45 Upper Can. Q B.R. (see Grand Junction R. Co., Re) 
Kaufi'man Milling Co v. Missouri Pacific R Co. (federal power to regulate 

inter-state carriage), 2 Inter-state Com. Reps. 400 521 

Kearnsr. Cord wainers Co. (preamble), 28 L.J. C. P. 285 285 

Kelley V. Rhoads (State control over depasturing cattle, 51 Pac. Rep. Wyo. 

(U.S.) 593 ... 519 

Kempe's Lessee v. Kennedy. (inferior courts), 5 Cranch (U.S.) 185 726 

Kemlall v. United States (suits against United States), 12 Pet. (U.S.) 524 ... 773, 806 
Kennedy v. Purcell (disputed election— appeal to Privy Council), Wheeler 

C.C.,314 '.': .. .: 497,498 

Kennett v. Chambers (judicial power— political question), 14 How. (U.S.) 38 723 

Kenrick V. Lawrence (title— statute), 25 Q.B.D. 99 ... 281 

Kentucky v. Dennison (inter-state extradition — political question), 24 How. 

(U.S.) 66 , ^ 620,775 

Kentucky Bridge Co. v. Lfmisville, Ac. , Co. (Inter-State Commission— execu- 
tive power), 37 Fed. Rep. (U.S.) 567 898 

Kidd V. Pearson (production not commerce — sale of alcohol — State regulation 

—valid), 128 U.S. 1 :. ... 518,855 

Kielley v. Carson (colonial legislature— prerogative— parliamentary privilege), 

4 M.X.. P.C. 63 ... . ... ..* ... *^ ^^.., ^.:. 309,504 

KillxMim ». Thomp.son (qualification of members), 103 U.S. 168 382,475 

Killam, Re (Provincial insolvency laws— validity), 14 Canada L.J. (N.S.) 242 589 
Kimmish v. Ball (pr)lice power— importation of diseased cattle - State law- 
valid), 129 U.S. 217 853,857,960 

King, 'Ihe (see Rex) 

Kinney v. Dudman (federal bankruptcy and insolvency laws), 2 Russ. and 

ChcR., Nova Scotia Reps. 19 589 

Klein, Re (bankruptcy and insolvency— federal control), i How. (U.S.) 277 ... 587 

Kold r. United States (eminent domain), 91 U.S. 367 367,640 

Koj)M V. Regina (leave to apy)eal— criminal case) (1894), App. Cas. 650 ... 752 

Krefft, Exp. (mandamus to officer of Crown), 14 S.C.R. (N.S. W.) 446 ... 782 



TABLE OF CASES. 



PAGE. 

Lake Shore and Michigan R. Co. v. Ohio (navigable waters), 165 U.S. 365 ... 882 

Lamplugh i\ Norton (construction — statute), 22 Q.B.D. 452 ... ... ... 364 

Lanmans Case (Senators — vacancy), CI. and Hall (U.S.) 871 ... 4.37 

Lanz V. Randalls (foreigaer — right to vote — citizenship), 4 Dill. (U.S.) 425 ... 602 

Lapierre 1/. Mcintosh (alien— disability), 8 L.J.Q.B. 112 600 

Latless r. Holmes (commencement of Act), 4 T.R. 660 ... ... . .. 331 

Lautour v. Teesdale (marriage — Cauon law), 2 Marsh. 243 ... ... ... 609 

Leather Cloth Co. v. American Leather Cloth Co. (trade mark), IIH. L. Cas. 

523 598 

Lees V. Summersgill (preamble), 17 Ves. 508 .. ... 285 

Legal Tender Cases (construction of constitution), 12 Wall. (U.S.) 457 575, 581, 796 

Legal Tender Case, 110 U.S. 421 (see Juilliard r. Greenman) 

Leisv I'. Hardin (State tax on imported goods— invalid), 135 U.S. 100 

515, 518, 528, 530, 537-8, 846, 848, 850, 851, 853, 943, 946 

Leloup i\ Port of Mobile (inter-state telegrams — State licenses), 127 U.S. 640 541, 847 
Lempriere r. New Pinnacle Group S.M. Co. (service out of jurisdiction - 

British subject), 21 A. LT. 182 615 

Lenoir v. Ritchie (appointment of Queen's counsel), 3 S.C.R. (Can.) 575 ... 693 
Leprohon v. City of Ottawa (Pro\incial tax on federal oflBcer), 2 Ont. App. 

Rep. 522 ... . • 551, 553. 554, 555, 949 

Letellier's Case (removal of Lieutenant-Governor), Todd, Pari. Gov. in Col. 

(2nd Ed.) p. 612 732 

Lewis I-. Graham (residence defined), 20 Q.B.D. 780 960 

License Cases (liquor), 5 How. (U.S.) 504 517, 518, 527-8. 538, 602 

License Tax Cases (police power), 5 Wall. (U.S.) 462 ... ... ... ... 555,850 

Lindsay v. Cundy (interpretation clause), 1 Q B.D. 348 ... ... ... ... 365 

Ling Sing v. Washburn (Chinese — discriminating laws), 20 Calif. Reps 534 ... 628 

Lionberger r. Rouse (State tax on shares in national banks), 9 Wall. (U.S.) 468 949 
Liquor Prohibition Case (Canada) (1896;, App. Ca. 348 (see Attorney-General 

of Ontario v. Att. (Jen. for Canada) 
Lithographic Co. v. Sarony, 111 U. S. 53 {see Burrow-Giles Litho. Co. r. Sarony ) 
Liverpool Insurance Co. i". Massachusetts (insurance business is not commerce), 

10 Wall. (U.S.) 566 583,853 

Liverpool Insurance Co v. Morse (removal of causes from State to federal 

courts), 20 Wall (U.S.) 445 959 

Loan Association v Topeka (taxation — power of States), 20 WalL (U.S.) 655 990 

Logan V. Courtown (construction — statute), 20 L.J. Ch. 347 ... ... ... 364 

London and N.W.R Co. v. Evershed, 3 Q.B.D. 134 (see Evershed v. London 

andN.W.R. Co.) i 

London Corp. c. Att.-(]len. (Crown— when bound), 1 H.L. Cas. 439 ... ... 321 

Lopez r. Burslem (parliament — foreigners), 4 Moo. P.C. 300 ... ... ... 355 

Lord r. Steamship Co. (commercial marine — internal commerce), 102 U.S. 541 518, 855 

Lotlawanna, The (lien on vessels — State and federal LawK 21 Wall. (U.S.) 588 540, 874 

Loughborough v. Blake (operation of federal laws), 5 Wheat. (U.S.) 317 551, 658, 941 

Louisiana r. Jumel (jurisdiction — suits against public officers), 107 U.S. 711 775 

V. Texas (controversies between States), 176 U.S. 1 ... ... ... 775 

Louisville, &c , R. Co. v. Behlmer (discrimination — competition), 175 U.S. 648 912 
r. Letson (jurisdiction— corporation an inhabitant), 2 

How. (U.S.) 497 777 

Low r Routledge (see Routledge v. Low) 

Lubbock r. Potts (colony — plantation). 7 Ea.st 449 36 

L' Union St. Jacques de Montreal i'. Belisle (bankruptcy laws — provincial ^nd 

federal powers), L.R. 6 P.C 31 588,589,590,693 

Luther v. Borden (judicial power — political question), 7 How. (U.S.) 1 

565, 722, 792, 927, 964 
Lyall V. Jardine (Privy Council — special leave to appeal), 7 Moo. P.C.N S. 

116; LR. 3 PC. .318 761 

Lyon t7. Morris (appeal — " final and conclusive"), 19 Q.B.D. 139 ... 746 
McAllister, A'e (State tax on imports — original package), 51 Fed. Rep. (U.S.) 

282 846 

McCall v. California (inter-state commerce — State license), 136 U.S. 104 ... 847, 857 
McClanaghan r. St. Ann's M.B Soc. (voluntary liquidation not insolvency), 

24Lower Can. Jur. 162 ; 2 Cart Wright 237 ' 589 

McCormick v. Sullivant (Inferior Courts), 10 Wheat. (U S.) 192 726 

McCready v. Virginia (fisheries — beds of tide waters), 94 U S. 391 961, 970 

McCuUoch V. Maryland (construction of Constitution— federal power to 

establish national bank), 4 Wheat. (U.S.) 316 

286, 551, 552, 553, 554, 555, 577, 652, 875, 949 



xxviii. TABLE OF CASES. 



PAGE. 

McCullough V. Brown (South Carolina dispensary laws), 41 South Carolina 220 947 

McElmoyle v. Cohen (inter-state enforcement of judgments), 13 Pet. (U.S. ) 312 963^ 

McGregor v. Cone (State tax on imports— original package), TSN.W. Rep. 1041 846 

Machine Co. v. Gage (commerce — State tax on peddlers), 100 U.S, 675 ... 849 

Mackenzie, Exp. (mandamus to officer of Crown), 6 S.C.R. (N.S. W.), 306 ... 782 
Macleod v. Att.-Gen. of New South Wales (extra-territorial jurisdiction) 

(1891), App. Cas 455 355 

McLeod V. McGuirk (Federal insolvency laws), 15 N. Bruns. Rep. (2 Pugs.) 248 689 
V. Wright (Federal insolvency laws), 17 N. Bruns. Rep. (1 Pugs, and 

Burb.)68 589- 

McNab w. Robertson (waters of rivers — percolating water) (1897), App. Cas. 129 893 

MeNiel, £"3; paWe (pilots— State regulations), 13 Wall. (U.S.) 236 641 

McNutt V. Bland (jurisdiction — citizens of different States), 2 How. (U.S.) 9 777 

Magner r. People (commerce — game laws), 97 Illinois 33... ... ... ... 854 

Maine v. Grand Trunk R. Co. (commerce — State tax on receipts), 142 U.S. 217 849 

Mallinson v. Mallinson (custody of children), 35 L J. Mat. 84 ... ... ... 612 

Mann. /?e (bankruptcy), 13 V.L.R 590 592 

Mansfield, &c., R. Co. v. Swan (federal jurisdiction — consent of parties), 111 

U.S. 379 785 

Mansion House Assoc, v. London and S. W.R. Co. (home and foreign merchan- 
dise— undue preference) (1895), 1 Q.B. 927 910,922 

Marbury v. Madison (judicial power to declare laws invalid — mandamus to 

federal officers), 1 Cranch (U.S.) 137 756,778-9,781,791 

Maritime Bank of Canada f. New Brunswick Receiver-General (Crown — pre- 
rogative in Dominion and in Provinces) (1892), App. Cas. 437 . ... 798, 931 

Marks, Exp. (treaty— interpretation of), 15 N.S. W. L.R. 179; 10 W.N. 224 770 

Marois, i?e (prerogative of appeal). 15 Moo. P. C. 189 ... ... ... ... 747 

Marriott v. London and N. W.R. Co. (railway omnibus— undue preference), 26 

L J. C.P. 154 907 

Marshall r. Murgatroyd (ship on high seas), L.R. 6 Q.B. 31 357 

Martin v. Hunter's Lessee (construction— judicial power), 1 Wheat. U.S. 304 

286, 511, 575, 651, 723, 765, 802" 

v.Mott (military power), 12 Wheat. (U.S.) 19 565 

Marye v. Baltimore and Ohio R. Co. (inter-state commerce — State tax on 

property), 127 U.S. 117 849 

Mason v. Armitage (preamble), 13 Ves. 25 285 

Matheson Brothers, Limited, Be (winding-up — foreign company), 27 Ch. D. 

225 ... 605 

Maxwell V. Dow (trial by jury), 176 U.S. £81 810 

Maynard v. Hill (territories— government— divorce laws), 125 U.S. 190 ... 972 

Mayor, The, v. Cooper (federal jurisdiction), 6 Wall. (U.S.) 247 ... ... 802 

Medway Navig. Co. v. Romney (riparian rights— reasonable use), 9 C.B.N.S. 

575 892 

Memphis, &c., R. Co. v. Alabama (jurisdiction — citizenship of corporation), 

107 U.S. 581 ... 777 

Mercer's Case (resignation of members), CI. and Hail (U.S.) 44 437 

Merchants' Bank of Canada v. Smith (commerce— banking), 8 Ont. App. 15 ; 

8 S.C.R. (Can.) 512 ... 578 

Merchants' Bank of Halifax v. Gillespie (winding-up foreign corporations), 

10 S.C.R. (Canada) 312 349,591,592,606 

Merchants' National Bank v. United States, 101 U.S. 1 (see National Bank v. 

Unite<l States) 

Merrill r. Sherburne (legislative power), 1 New Hamp. 199 ; 8 Amer. Dec. 52 721 
Mersey Docks v. Cameron (Crown property exempt from taxation), 11 H.L. 

Cas. 443 321 

Metcalfr. Watertown (original jurisdiction), 128 iil.S. 586 ... ... ... 785 

Metropijlitan R.R. Co. v. District of Columbia (federal territory— government) 



Middlesex (Sheriff), Case of (parliamentary privilege— contempt), 11 A. andE. 



659 

.... 502 

Mirlland Ry. Co. v. Ambergate, &c., Ry. Co. (interpretation clause), 10 Hare 

359 ... ... ... ... ... ._ _ 3gg 

Millar r. Taylor (copyright), 4 Burr. 2.303 ... ... ... .'. ... ... 593 

Miller I'. Mayor of New York (commerce -navigation-obstruction), 109 

x,u ^ ^^^ ^■■\ 516,517,531,640,884 

Miller r. Race (bank note), 1 Burr. 452 575 

Wills r. Durycc (proof of judicial record), 7 Cranch (U.S.) 481 ". ... 963 



TABLE OF CASES. 



Milnor t;. New Jersey R. Co. (State canals, highways, bridges), cited Baker, 

Annot. Const. 25 ... ' 542 

Miner v. Gilraour (riparian rights — reasonable use), 12 Moo. P.C. 131 892 

Minnesota v. Barber (police power — inspection of animals before slaughter), 

136 U.S. 313 536-7,848,857,944 

Minor r. Happersett (citizen), 21 WalL (U.S.) 162 ^.. 776 

Mississippi r. Johnson (judicial power — political question), 4 Wall. (U.S.) 475 723 

Mitchell I' County Commissioners (federal notes exempt from State taxation), 

91 US. 206 ... ... 559 

Mitchell I". Harmony (military power — wrong committed in foreign country — 

jurisdiction), 13' How. (U.S.) 115 642 

Mobile V. Kimball (commerce — navigable streams — State tolls), 102 U.S. 691 

518, 532, 540, 541, 849, 852, 885 
Modee Kaikhooscrow Hormusjee v. Cooverbhaee (prerogative of appeal), 

6 Moo Ind. A pp. 448 747 

^lonongahela Na\ig. Co. v. United States (na\'igable streams — federal power), 

148 U.S. 312 8.^2. 88.3, 885 

3/o7i^e//o, The (navigable waters), 11 Wall. (U.S.) 411 540,882 

JLToJt^cWo, The (navigable waters), 20 Wall. (U.S.) 4:i0 882,883 

Montreal ^Mayor) v. Brown (creation of right of appeal), 2 App. Ca. 168 ... 746 

Montreal v. Ecclesiastiques de St. Sulpice (Privy Council — special leave to 

appeal), 14 App. Ca. 660 .. ... -- ... ... 753 

Moore v. AJmerican Transportation Co. (internal commerce), 24 How. (US.) 1 855 

Moran v. New Orleans (inter-state commerce — State licenses), 112 U.S. 69 ..'. 847 

Morgan v. Parham (State tax on vessels), 16 WalL (U.S.) 471 ... ... ... 858 

[Morgan's Steamship Co. v. Louisiana Board of Health (quarantine — State 

fees), 118 U.S. 455 567,850,857 

Mormon Church v. United States, 136 U.S. 1 {see Roraney v. United States) 

Morrill v. Wisconsin (State tax on peddlers), cited Baker, Annot. Const. 28 ... 857 

Morrison v. Springer (federal suffrage — State regulation), 15 Iowa Reps. (U.S.) 

345 468 

MostjTi V. Fabrigas (Colonial Governor— liability for wrongs), 1 Cowp. 161 ... 391 

Munn V. Illinois (storage of grain — State regulation), 94 U.S. 113 533, 852, 857, 876 

Murphv v. Ram.sev (fe<leral territories — government), 114 U.S. 15 ... ... 973 

1 r. Ryan (fishery), Ir. Reps. 2 C.L. 143 568 

Musgrave v. Pulido (Colonial Governor— authoritj-). 5 App. Cas. 102 ... ... 391 

Musgrove r.* Chung Toj- (we Chung To\' v. Musgrove) 

Myers v. Baltimore Commissioners (State tax on imported property), 35 Atl. 

Rep. 144 848 

Nash%ille, &c , R. Co. v. Alabama (commerce— license fees for railroad 

employees). 128 U.S. 96 850,857 

Nathan r. Louisiana (State tax on money — brokers — valid), 8 How. (U.S.) 73 

516,517,856 
National Bank v. Kentucky (federal securities exempt from State taxation ; 

(State tax on shares in national banks), 9 Wall. (U.S.) 353 ... ... ... 555, 949 

National Bank r. United States (federal power to tax bank established by 

State laws), 101 U.S. 1 555 

National Bank v. Yankton County (federal territories — government), 101 U.S. 

129 972, 973 

National Starch, &c. . Co r. Munn's Maizena Co. (treatj'— interpretation of), 

13N.S.VV.L.R Eq 101 770 

Neal 1-. Delaware (federal power to prevent electoral discriminations), 103 

U.S. 370 468,623 

Neilson v. Garza (inspection laws), 2 Woods (U.S ) 287 ... ... ... 944 

Newby r. Van Oppen (foreign corporation doing business in British posses- 
sion), L.R. 7 Q.B. 293 605 

New Hampshire v. Louisiana (jurisdiction — controversies between States), 108 

U.S. 76 774 

Newland r. Marsh (legislative power), 19 Illinois 383 ... ... ... ... 721 

New Orleans f. De Armas (treaty— "arising under"), 9 Pet. (U.S.) 224 ... 770 

V. Winter (jurisdiction — resident of territory), 1 Wheat. (U.S.) 91 777 

Waterworks Co. r. Tammany Waterworks Co. (police power — 

private property taken for public use), 14 Fed. Rep. (U.S.) 194 642 

Newport, &c.. Bridge Co. r. United States, 105 US. 470 {see Bridge Co. r. 

United States) 
Newry r. Great Northern R. Co. <group rates — imdue preference), 7 Ry. and 

Can. Traf. Cas. 184 908 



TABLE OF CASES. 



New York (and see People of New York) 

New York v. Louisiana (jurisdiction — controversies between States), 108 U.S. 

76 774,775 

New York v. Miln (commerce— reports — ship mastei-s), 11 Pet. (U.S.) 102 

526-7, 529, 657 
New York Board of Trade v. Pennsylvania R. Co. (federal power to regulate 

rates of carriage), .*] Inter-State Com. Rep. 417 ... ... ... ... 521 

Nicholson v. Great Western R. Co. (preference not necessarily unreasonable), 

' 28L.J.C.P 89 907,914 

Norfolk and Western R. Co. v. Pennsylvania (inter-state commerce — State 

tax on railway company), 136 U.S. 114.. ... ... ... ... ... 847,857 

North Lonsdale Iron Co. v. Fumess R Co. (group rates — undue preference), 

60L.J.Q.B. 419 90S 

Norton v. Shelby County (laws in excess of legislative power are void), 118 

U.S. 425 346, 939 

Norwich Railroad Co. v. Johnson, 15 Wall. (U.S.) 195 (see Railroad Co. v. 

Johnson) 

Nuth v. Tamplin (construction— statute), 8 Q.B.D. 247 364 

Ogden r. Saunders (bankruptcy — State laws), 12 Wheat, (U.S. ) 213 587 

Olcott V. Supervisors (railway — eminent domain), 16 Wall. (U.S.) 678 ... 641 

Oriental Bank Corporation, Re (Crown— priority), 28 Ch. D. 643 322 

Ormerod v. Todmorden Joint Stock Mill Co. (riparian rights — reasonable use), 

11 Q.B.D. 155 892 

Osborn v. Bank of the United States (State tax on branch of federal bank). 9 

Wheat. (U.S.) 738 552, 602, 772, 773, 875, 949 

Osborne v. Mobile (concurrent legislative power of States), 16 Wall. (U.S.) 479 856 

Otto 1?. Linford (patent), 46 L.T. 35 597 

Ouachita Packet Co. ^^ Aiken (wharfage rates), 121 U.S. 444 .. 532 

Owen, Exp. (provincial tax on federal officer), 20 N. Bruns. Rep. (4 Pugs. 

andBurb.)487 553 

Owings V. Norwood's Lessee (treaty — "arising under"), 5 Cranch (U.S.) 344 770 

Ox lade V. Eastern Counties R. Co. (special rate — undue preference), 26 

L.J.C.P. 129 907 

Pace r. Burgess (commerce — State stamp fee), 92 U.S. 372 519,849 

Pacific Mail Steamship Co. v. Joliffe, 2 Wall. (U.S.) 450 («ee Steamship Co. 

V. JoliflFe) 
Pacific Railroad Co. v. Peniston (State tax on corporation), 18 Wall. (U.S.) 5 

552, 554, 655 
Packet Co. r. Keokuk (wharfage rates— State control), 95 U.S. 80 ... 536, 796, 850 
Palmer r. Cuyahoga Co. (navigable streams — obstructions — improvement), 

3McL. (U.S.)226 541 

Palmer v. London and S.W.R. Co. (undue preference— question of fact), 

L.R. 1 C.P 588 ... 745,909,915 

Panter r. Attorney-General (commencement of Act), 6 Bro. Cas. Pari. 486 ... 331 

Parker I'. Overman (tax bill— machinery clauses), 18 How. (U.S.) 137 ... 66» 

Parsons v. Chicago and N.W.R. Co. (local and through rates- undue 

preference), l(i7 U.S. 447 .. 912 

Passenger Cases (State tax on alien passengers), 7 How. (U.S.) 283 

516, 518, 520, 528-9. 855, 877 
Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U.S. 345 ... 944 

Patterson r. Gaslight Coke Co. (patent), 2 Ch I). 812 597 

t'- Kentucky (police powers— explosives), 97 U.S. 501 850,851 

Paul V. Virginia (insurance is not commerce— State license fee), 8 Wall. 

(U.S.) 1H8 ... 583,849,961 

Pawlet (Town of) v. Clark (jurisdiction -land claimed under grants of 

different States), 9 Cranch (U.S.) 292 801 

Peacock w. Bell (inferior court.s— jurisdiction), 1 Saund. 73 726 

Pearce V. Scotchcr (fishery), 9 Q.B.I). 162 569 

Peete v. Morgan (State tax on foreign vessel— quarantine), i9 Wall. (U.S.) 

581 85» 

Peik V. Chicago and N.W.R. Co, (inter-state railroad— minimum rate), 94 

„ U.S. H}4 856,857 

Peirce v. New Hampshire. 5 How. (U.S.) .)04 (.see License Ca.ses) 

Pembina Mining Co. v. Pennsylvania (commerce -State license fee on foreign 

corporation), 125 U.S. 181 849,856 

Ptnniman's Case (statute unconstitutional in part), 103 U.S. 714 ... ... 796- 

Pennoyer w, Neff (service of process), 95 U,S. 714 96:i 



TABLE OF CASES. 



PAGE. 

Pennsylvania v. Wheeling Bridge Co. (commerce — navigable river — bridged, 

13 How. (U.S.) 518 526,530-1,032,540,886 

Pennsylvania v. Wheeling Bridge Co. (commerce — navigable river — federal 

power), 18 How. (U. 8.) ■421 ... 517,531,852,878 

Pensacola Tel. Co. v. Western Union Tel. Co. (electric telegraph an agency 

of commerce), 96 U.S. 1 518,534,541,560 

People V. Compagnie Generale Transatlantique (inspection laws— State tax on 

foreign passengers), 107 U.S. 59 .. ... ... 847, 855, 944 

People r. Edye (inspection laws — purpose), 11 Daley (U.S ) 132 944 

People f. Hawkins (commerce — labelling convict-made imports\ 31 N.Y. 

Suppl. 115 .. ... ... ... ... ... ... ... ... ... 851 

People V. Raymond (discriminatory legislation against Chinese), 34 Calif. 

'Rep. (U.S.) 492 628 

People of New York v. Commrs. of Taxes, 2 Wall. (U.S.) 200 (see Bank Tax 

Case) 
Permoli v. First Miinicipalitv (religious liberty dependent on State laws), 

3 How. (U.S.) 589 .. ". 953,970 

Pervear v. Commonwealth (original package), 5 Wall. (U.S ) 475 ... ... 555 

Philadelphia Steamship Co. v. Pennsylvania ^commerce — tranportation — Stat« 

tax on receipts), 122 U.S. 3C6 .. ... 517,849,856 

Philip V. Philip (access to children), 41 L.J. Prob. 89 612 

Philipps I'. Rees (construction - statute), 24 Q.B.D. 17 365 

Phillips V. Eyre (Crown— colonial legislature^privileges), L.R. 6 Q.B. 1 309, 310, 355 
Phipps w. London and N.W.R. Co. (competitive rates - undue preference — 

question of fact) (1892), 2 Q.B. 229 745,906,907,908-10,915,916,918 

Pickard i'. Pullman Car Co. (tax on inter-state commerce), 117 L'.S. 34 ... 846, 856 

Pisani r. Lawson (alien— libel right to sue), 6 Bing. N.C. 90 600 

Pittsburg Coal Co. v. Bates iState tax on sales), 156 U.S. 577 848 

Plumley v. Massachusetts (police power— sale of oleomargarine), 155 U.S. 461 851 

Polgla.ss r. Oliver (legal tender), 2 Crompt. and Jar 15 . ... 575 

Pollard V. Hagan (federal territory— government), 3 How. (U.S.) 212 658, 970 

Pollock V. Farmers' Loan and Trust Co. (direct taxes requiring apportionment), 

157 U.S. 429 ; and 158 U.S. 601 549,556 

Pound r. Turck (dam across navigable stream), 95 US. 459 ... 525, 532, 858, 885 

Powell r. Pennsylvania (police power— sale of oleomargarine), 127 U.S. 678 ... 850 

Presser o. Illinois (right to bear arms), 116 U S. 252 564, 796 

Preston v. Finley (State tax to exclude obscene paper), 72 Fed. Rep. (U.S.) 850 518, 851 
Prigg V. Pennsylvania (Constitution — construction implied powers), 16 Pet. 

(U.S.) 539 652, 796 

Prince v. Gagnon (Privy Council - special leave to appeal), 8 App. Ca. 103 ... 753 

Provident Institution i\ Massachusetts (federal securities exempt from State 

taxation), 6 Wall. (U.S.) 611 559,949 

Provincial Fisheries, /le ( regulation of fisheries), 26 S.C.R. (Can.) 444 ... 569 

Pullman's Palace Car Co. v. Pennsylvania (inter-state commerce — State tax on 

railroad stock), 141 U.S. 18 849 

Pumpelly v. Green Bay Co. (eminent domain — compensation), 13 Wall. (U.S.) 

166 641,642 

Queen, The (see Regina) 

Quirt V. The Queen (winding-up ; private bill legislation), 19 S.C.R (Can.) 510 590 

Rahrer, i?e (Federal and State laws— harbour dues), 140 U.S. 545 853,946 

Railroad Co. v. Baldwin (federal power to authorize railway construction), 103 

U.S 426 ... ... 972 

Railroad Co. v. Fuller (posting railway rates— State law), 17 Wall. (U.S.) 560 856 

Railroad Co v. Husen (police power— State law restricting importation of 

cattle), 95 U.S. 465' 518,533,847,857 

Railroad Co. 1-. Johnson (legal tender), 15 Wall (U.S.) 195 575 

Raih-oad Co. r. Peniston, 18 Wall. (US.) 5 (nee Pacific Railroad Co. v. 

Peniston) 
Railroad Co. r. Richmond (commerce — bridges across navigable rivers), 19 

WaU. (U.S.)584 541,856 

Railroad Co. r. Tennessee (jurisdiction— suit against State), 101 U.S. 337 ... 774 

Railroad Co. (Morgan L. and T.) r. Board of Health (inspection laws), 36 

Louisiana Annu. 666 ... ... ... ... ... ... ... ... 944 

Railroad Companies v. Schutte (statute unconstitutional in part), 103 U.S. 118 796 

Railway Co. v. Ramsey (federal jurisdiction -admission), 22 Wall. (U.S.) 322 785 

Ralston I'. Smith (patent), 11 H.L. Cas. 223 597 

Ransome v. Eastern Counties R. Co. (competitive rates — undue preference), 

26L.J.C.P. 91 907 



TABLE OF CASES. 



Ransome v. Eastern Counties R. Co. (group rates -undue preference), 27 

L.J.C.P. 166 907 

Ransome r. Eastern Counties R. Co. (trainload— undue preference), 29 

L.J.C.P. 329 908 

Ratclifff. Ratcliff (divorce-domicile), 29 L.J. Mat. 171 611 

Ray V. McMackin (inter-colonial extradition), 1 V.L.R. (L.) 274 ... 355, 617, 630 

Reade w. Conquest (copyright). 30 L.J.C.P. 209 593 

Reading Railroad Co. v. Pennsylvania (see State Freight Tax Co. ) 

Reed V. Cosden (election returns), Cl. and Hall (U.S.) 353 438,440,475 

Regina v. Amer (justice in territories), 42 Upper Canada Q.B. 391 973, 983 

V. Anderson (British ship— offences on board), L.R. 1 C.C. 161 ... 358 

V. Armstrong (British ship — offences on board), 13 Cox, C.C. 185 ... 358 

V. Bay ley (Crown— when bound), 4 Ir. Eq. R. 142 321 



V. Bortrand (prerogative of appeal), L.R. 1 P.C. 520 ... ... ... 750, 752 

V. Boiler Explos. Act Commr-s. (interpretation clause) (1891), 1 Q.B. 

703 365 

Regina v. Bowell (Provincial tax on federal officer), 4 Brit. Columbia Reps. 

498 553 

Regina «. Brierly (extra-territorial laws), 14 Ont. Reps. 525 ... ... ... 602 

V. Burah (plenary legislative power), 3 App. Cas. 889 .. 509 

V. Call, Ex parte Murphy (extra-territorial jurisdiction), 7 V.L.R. (L.) 

113 354,614,618 

Regina v. Carr (British ship — offences on board), 10 Q.B. D. 76 ... 358 

V. Chapman (fraud upon public officer), 18 L. J.M.C. 152 809 

V. College of Physicians (meaning of "exclusive"), 44 Upper Can. Q.B. 

564 350, 656 

Regina z'. Cruise (Crown — priority), 2 Ir. Ch. R. 65 ... ... ... ... 322 

1). Dudley (British ship — offences on board), 14 Q.B, D. 273 358 

V. Fredericton (City), 19 N. Bruns. (3 Pugs, and Burb.) 139 (see 

Fredericton City v. the Queen) 

Regina t'. Hall (misdemeanour) (1891), 1 Q.B. 747 470 

V. Hertford College (construction of statutes — extrinsic evidence), 3 

Q.B.D. 693 796 

Regina u, Keyn (Territorial waters). 2 Exch. D. 63 ... 355, 359 

V. King's County Justices (Liquor Licenses — provincial control), 15 N. 

Bruns. (2 Pugs.). 535 542,544 

Regina w. Lancaster (bribery of public officer), 16 Cox 737 ... ... ... 809 

V. Leslie (British ship — oflences on board), 8 Cox, C.C, 269 358 

V. Local Government Board (prohibition to public bodies), 10 Q.B.D. 309 783 

V. London (Bishop), (Construction— Statute), 24 Q.B.D. 213 365 

V. Lopez (British ship - foreigner on board), 27 L.J. M.C. 48 .. ... 358 

V. Lords Commissioners of Treasury (mandamus to officers of Crown), 

L.R. 7Q.B. 387 781 

Regina V. Mallow Union (Title— Statute), 12 Ir. C. L.R. 35 365 

i>. Most 'Construction— Statute) 7 Q.B.D. 244 365 

V. Pearce (Interiiretation clause), 5 Q.B.D. 386 366 

V. Powell (no mandamus to sovereign), 1 Q.B. 352 .. ... ... 781 

w. Robertson (Fisheries), 6 8. C.R. (Can.) 52 569 

V. Sattler (British ship— foreigner on board), 27 L.J. M.C. 48 358 

r. Slator (indictment— information), 8 Q.B.D. 267 808 

V. Taylor (exclusive legislative power), .36 Upper Can. Q.B. 183 ... 349 

V. Walker (misdemeanour — common law), L.R. 10 Q.B. .355 470 

V. Wellington County, (Insolvency laws— provincial and federal — 

conflict), 17 Ont. Reps. 615 591 

Regina I'. Williams (liability of Crown for tort), 9 App Ca. 418 805 

V. VVim»)ledon Local Board (Construction— Statute), 8 Q.B.D. 459 ... 365 

V. Wing Chong (Chinese License Case), 1 Brit. Col. Rep., Part II., p. 

150 ; Wheeler, C.C. 122 628 

Renaud, Exp. (Imperial legislative control over colonies), 14 N. Bruns. 273 ; 

1 Cart. 445 349 

Rex V. Cowle (mandamus- jurisdiction of Court of King's Bench), 2 Burr. 834 781 

V. Fuller (procuring base coin). Russ. and Ry. 308 809 

V. Johnson (Preamble), 29 St. Tr. .303 285 

V. North Curry Inhabitants (Residence defined), 4 Barn, and Cres, 959 ... 960 

V. Robinson (Preamble), 2 East P.C. 1113 285 

V. Sainsbury (breach of sUtute— indictable offence), 4 T.R. 451 ... ... 810 

V. Button (possession of coining tools), 1 East P.C. 172 809 



TABLE OF CASES. xxxiii. 



Rex p. Wilkes (Judicial discretion), 4 Burr. 2539 759 

«. Williams (Title— Statute), 1 W. BL 93 ... ... - ... 281 

Re^-nolds r. Stockton (State judgment — when enforced in other States), 140 

* U.S. 254 963 

Reynolds v. United Sutes (Territorial Court - polygamy), 98 U.S. 145 ... 953 
Rhode Island v. Massachusetts (construction— exceptions to a grant— juris- 
diction), 12 Pet. (U.S.) 6.57 •; 578,775,796 

Rhodes r. Iowa (State liquor law— The Wilaon Act — operation), 170 U.S. 412 947 

Rhymney R. Co. r. Rhymney Iron Co. (undue preference), 25 Q.B.D. 146 ... 921 
Richards' Case (election returns — certified — qualification), CI. and Hall (U.S.) 

95 438,440,475 

Richards r. Butcher (trademark) (1891), 2 Ch. 522 598 

V. McBride (construction of statutes— extrinsic evidence), 8 Q.B.D. 

119 ._. ^ 796 

Riel r. The Queen (justice in territories), 10 App. Cas. 675 350, 514, 973 

Ringfret r. Pope (quarantine). 12 Quebec L. Reps. 303 ... ... ... ... 567 

Robb V. Connolly (extradition -" officer of the United States"), 111 U.S. 624 620, 784 
Robbins v Shelbv Taxing District (Stat« tax on commercisil travellers — 

invalid). 120 U.S. 489 517,519,847 

Roberts r. Reilly lextradition — inter-state — conditions), 116 U.S. 80 620 

c. United States (mandamus to public officer), 176 U.S. 221 ... ... 782 

Robertson, Exp. : Re Oovemor-General of N.S.W. (removal of judges), 

11 Moo. P.C. 288 730 

Robertson r. Pickrell (faith and credit), 109 U.S. 608 963 

Robinson r. Barton-Eccles Local Board (interpretation clause), 8 App. Cas. 

798 366 

Robinson r, Campbell (common law — federal jurisdiction), 3 Wheat. (U.S.) 

212 788 

Romney ». United States (federal territories — government), 136 U.S. 1 ... 972, 973 

Rooke's Case (judicial discretion), 5 Coke Rep. 100a ... ... ... 759 

Rothes V Kirkcaldj' Waterworks (construction — statute), 7 App. Cas. 694 . . 365 

Rouanet, Exp. (treaty— interpretation of), 15 N.S. W.L.R. 269 ; 11 W.N. 55 770 
Routledge r. Low (copyright — colonies — aliens), L.R. 1 Ch. 42 ; 3 H. L. 100 

348, 594, 595, 6U0, 602, 958 
Ruggles 1-. Manistee River Improvement Co. (commerce— improvement of 

river), 123 U.S. 297 532 

Russell V. The Queen (federal control over liquor traffic), 7 App. Cas. 829 ... 512, 545 

Ryall V. Kenealy (influx of criminals), 6 W.W. and aB. (Vic.) 193 630 

Ryan r. Carter (inter-state privileges and immunities), 93 U.S. 78 ... ... 960 

Ryder f. Ryder (custody of children), 30 L. J. Mat. 44 612 

St. Louis r. McCo}- (police powers— quarantine), 18 Missouri 238 854 

r. Telegraph Co. (reasonableness of wharfage rates), 1.39 U.S. 463 ... 854 

p. Wiggins Ferrj' Co. (vessels — when not taxable by a State), 11 

Wall. (U.S. 423) 847, 854 

Salkeld f. Johnson (statute -title), 2 Exch. 256 281,284 

Sandhurst (Lady) r. Beresford Hope («e Beresford Hope v. Sandhurst) 
Sands r. Manistee Improvement Co (river whoUv within a State), improve- 
ment), 123 U.S. 288 ' 532. .540. 850, 885 

Sa\-ings and Loan Assoc, v. Topeka, 20 Wall. (U.S.) 655 [see Loan Association 

V. Topeka) 

Scholey r. Rew (federal succession tax), 23 Wall. (U.S.) 331 556 

Schollenberger r. Pennsj'lvania (State tax on imports — original package — 

oleomargarine), 171 U.S. 1 ... 846,851 

Scott r. Donald, 165 U.S. .58 [see Donald c. Scott) 

Searl v. Lake County School District (just compensation), 133 U.S. 553 641 

Severn v. The Queen (brewers' licenses^provincial control), 2 S.C.R. (Can.) 70 544, 547 

Shaw r. Gould (divorce— legitimacv), 37 L J. Ch 433 611 

F. Ruddin (title— statute), 9* Ir. C.L.R. 214 281 

Sherlock r. Ailing (marine torts), 93 U.S. 99 542 

Shively r. Bowlby (federal control of na\ngable waters), 152 U.S. 1 883 

Siebold. Eocp. (imprisonment under unconstitutional law — habeas corpus), 100 

U S. .371 470, 471, 472, 965 

Simpson r. Fogo (civil process - service), 32 L.J. Ch. 349 616 

Sinclairs Divorce Bill (divorce— domicile) (1897), App.. Cas 469 611 

Sinking Fund Cases, 99 U.S. 700 {see Doggett r. Railroad Co.) 

Sinnot r. Davenport (commercial marine — federal control). 22 How. (U.S.) 227 542 

Slaughter House Cases (privileges and immunities of federal citizenship), 16 

WaU. (U.S.)36 850,961 



xxxiv. TABLE OF CASES. 



Slingsby's Case (suspension of judges), 3 Swanst. 178 733 

Smiles v. Belford (copyright in colonies), 1 Ont. App. Reps. 436 ;i49, 5fl5 

Smith, Ji-xw. (federal jurisdiction). 94 U.S. 455 784 

V. Goldie (patent— tribunal), 9 S.C.R. (Can ) 46 598 

V. Merchants' Bank, 8 Ont. App. Reps, 15 (see Merchants' Bank of 

Canada v. Smith) 

Smyth V. Ames (State regulation of internal commerce), 169 U.S. 466 520, 874, 921 
Society for Savings v. Coite <State tax on federal corporation), 6 Wall (U.S.) 

594 - 949 

Soon Hing v. Crowley (regulation of Chinese labour), 113 U.S. 703 623, 853 

Sottomayoru. De Barros (marriage — domicile), 3 Prob. D. 1 ... ... 609 

South Carolina v. Georgia (federal control over navigable waters), 93 U.S. 4 

516, 540, 878, 883 

Southey r. Sherwood (copyright), 2 Mer. 435 593 

Spaulding v. Mead (qualification of members), CI. and Hall (U.S.) 157 438, 440, 475 
Speaker of the Leg. Ass. (Vic.) v. Glass (parliamentary privilege), L.R. 3 P.C. 

560 506 

Spraigue v. Thompson (pilotage compulsory — State regulation), 118 U.S. 90 541, 796 

Spratt V. Spratt (custody of children), 1 Sw and Tr. 215 ... ... ... 612 

Springville u. Thomas (trial by jury), 166 U.S. 707 ... ... ... ... 810 

State V. Engle (Goods in transit not subject to State taxation), 34 New Jersey 

L. 435 519 

State f. Illinois Central R. Co. (navigable waters — obstruction), 146 U.S. 387 885 

V. Rhodes (Liquor law — State control — the Wilson Act) 90 Iowa (U.S.) 

496 946 

State V. Steamship Constitution (Police power— exclusion of immigrants), 42 

Calif. 578 ; 10 Amer. Rep. 303 853 

State Freight Tax Case (State tax on freight passing through- invalid) 15 

Wall. (U.S.) 232 ... 516,532,796,846,848,855 

State Tax on Railway Gross Receipts Case (Inter-state commerce) 15 Wall. 

(U.S.) 284 ■ 542,849,855 

State Tonnage Tax Cases, 12 Wall. (U.S.) 204 858,944 

Stead V. Course (Power to tax includes means to enforce) 4 Uranch^U.S.) 403 668 
Steamship Co. v. Joliffe (Pilots— State control subject to federal law -State 

portdues), 2WalL (U.S.)450 541,853 

Steamship Co u. Port Wardens (Pilotage -compulsory — State regulation), 6 

Wall. (U.S.) 31 641,847,854 

Steamship Co, v. Tugman (jurisdiction citizenship of corpoi-ation), 106 U.S. 

118 ... 777 

Stepney Election Petition, Be {see Isaacson v. Durant) 

Stevenson v. The Queen (Customs duties coUeotioB - resolution of Assembly), 

2W.W. anda'B. (L.)(Vic.)143 506,859 

Stillman v. White Rock Manuf. Co. (boundary breams - riparian law), 3 Wood 

and M. (U.S.) 5.38 889 

Stockdale v. Hansard (Parliamentary privilege), 9 Ad. and El. 1 503 

.Stockton V. Baltimore R, Co (federal control of navigable waters), 32 F«d. 

Rep. (U.S.) 9 „ 883 

Stoutenburgh v. Hennick (Federal territory— governm«it—Stat« tax on com- 
mercial travellers), 129 U.S. 141 „ 658,847,941 

Straudert). West Virginia (trial by jury), 100 U.S. 303 810 

Strawbridge r. Curtiss (jurisdiction - c-itizens of different States^, 3 Cra»ch 

(US.) 267 ... 777 

SturgcB V. Crowninshield (Bankruptcy— State law— Uniform), 4 Wlieat. (U.8.) 

122 427,557,587 

Sturtevants v. Alton City (Post Offices— federal pow*!-), 3 McL. <U-S.) 393 ... 560 

Supervisors v. Stanley (statute unconstitutional in part), 105 U.S. 305 ... 796 

Sussex Peerage Case (Preamble - construction), 1 1 O. and Firm 85 ... 285, 364 

Sutton V. Sutton (Preamble - Marginal note), 22 Ch. 1). 511 .. 285 

Swan, .ffe (Judicial power— independence), 150 U.S. 637 382 

Swanton t», (ioold (construction of statute), 9 Ir.C. L.R. 234 ... 365 

Tai Singjp. Macguire (sovereignty of British Pari.), 1 Brit. Uol. (Irvng) 107... 350 

Tarble s Case (Naval and Military power). 13 Wall. (U.S.) 397 564 

Taylor, i?c (Judicial discretion), 4 Ch. D. 157 759 

— V. Barton, 6 N.S.W. L.R. 1 ; 11 App. Ca. 1«7 t«ec Bartciii v. Taylor) 

Telegraph Co. v. Texas (State tax on interstate commerce), 105 U.S. 460 

. r 541,846,848,855 

Temple, Axp. (Witness— privilege), 2 Ves. and B. *ll 321 



TABLE OF CASES. 



PAGE. 

Tennant f . Union Bank of Cana<la (Banking— warehouse receipts) (1894) App. 

Cas 31 .••• 578,597 

Tennessee r. Davis (jurisdiction— civil, criminal, »nd territorial — " arising 

under the laws''), 100 U.S. 257 3^' "?I 

Tennessee v. Pullman Southern Car Co. (State t^Ls on cars), 117 U.S. 51 ... 856 

Texas v. White (once a State always a State), 7 Wall. U.S. 7tH> ... 293, 370, ft29 

Texas and Pacific R. Co. v. Inter-State Commerce Commission (wholesale rate 

— undue preference — objects of Inter-State Commerce Act), 162 U.S. 197 

745, 898, 900, 905, 911-2, 914, 915 
Texas and Pacific R. Co. v. Inter-State Transportation Co. (na\igable watere — 

obstruction), 155 U.S. 585 •■■ 884,886 

Theberge v. Laudry (controverted provincial election law — prerogative of 

appeal), 2 App." Cas. 102 497,498,747,761 

Thompson r. Utah (trial by jury), 170 U S. 343 810 

V. Whitman (State judgments— faith and credit), 18 Wall. (U.S.) 457 963 

Thomson r. Union Pacific R R. Co. (State tax on railway employed by Federal 

Government), 9 Wall. (U.S.) 579 552,554 

Thormann v. Frame (judgment — faith and credit), 176 U.S. 350 ... .. 963 

Thurlow t,-. Ma-ssachusetts (State control over liquor tratfic), 5 How. (U.S.) 586 

(and «ee License Cases) ... ... ... ... ... ... 542 

Tiernan r. Rinker (inter-state commerc-e— State licenses), 102 U.S. 123 847, 848, 856 

Tomlinson ». Bullock (time in statute), 4 Q.B.D. 230 331 

Toronto (City) r. Virgo (regulation and prohibition distinguished) (1896) App. 

Cas. 88 548 

Trade Mark Cases (statute uncoastitutional in part), 100 U.S. 582 796 

Train r. Boston Disinfectant Co. (police powers — quarantine), 144 ^ass. 523 ; 

.jQAmer. Rep. 113 ^ 854 

Transportation Co. i\ Fitzhugh (admiralty jurisdiction), 1 Black (U.S.) 574 ... 800 
V. Parkersburg (wharfage rates — State regulation), 107 U.S. 

691 536,850,853 

Transportation Co. r. Wheeling (State tax on vessels), 99 U.S. 273 ... ... 858 

Trumbull's Case (Senators— qualification), 1 Cong. El. Cas. (U.S.) 618 440, 475 

Tua {-. Carriere (bankruptcy — State la w^s), 117 U.S. 201 ... ... ... ... 587 

Turner r. Maryland (inspection and branding — State stamp fee), 107 U.S. 38 .. 849, 944 
Turney r. Marshall (qualification of members), 1 Cong. El. Cas. (U.S.) 167 ... 440, 475 
Turpin c. Burgess (State stamp fee — export stamp on goods), 117 U.S. 504 539, 846, 849 

Tj'ler, T^e (judicial power —independence), 149 U.S. 164 ... . 382 

Union Bank v. Tuttle (insolvencv in one colon}' — effect in another), 15 V. L.R. 

258 ' 592 

Union Collierj' Co. of Brit. Columbia i;. Bryden (Chinese — in mines), (1899) 

App. Ca. 580 603 

Union Pacific R. Co. v. Peniston, 18 Wall. (U.S.) 5 («ce Pacific Railroad Co. r. 

Peniston) 
Union Steamship Co. of N.Z. v. Melbourne Harbour Trust (statute — headings), 

9App. Ca. 365 281 

United States v. Angell (Federal tax on employments), 11 Fed. Rep. (U.S.) 34 556 

«'. Arjona (Coinage and currency— offences), 120 U.S. 479 ... 573 

r. Bainbridge (Naval and military power), 1 Mason (U S.) 71 ... 564 

V. Bellingham Bay Boom Co. (Navigation -rivers), 176 U.S. 211 883 

ex rel. Boynton v. Blaine (mandamus to United States), 139 

U.S 306 ... 782 

United States v. Britton (federal jurisdiction — common law offences^, 108 

U.S. 199 787 

United States v. Coolidge (federal jurisdiction — common law offences), 1 

Gallison (U.S.) 488 ; 1 Wheat. 415 786,787 

United States v. Cornell (Offences in federal territory— federal jurisdiction), 

2 Mason (US) 91 ... 660 

United States r. Cruikshank (Implied powers — conspiring to prevent free 

exercise of federal rights), 92 U S 542 652 

United States r. Curtis (trial by jury), 4 Mason (U.S.) 2.32 808 

e-r rel. Dunlap v. Black (mandamus to federal oflHcer), 128 

U.S. 40 782 

United States v. Eaton (federal jurisdiction— common law offences), 144 

_ U.S. 677 787 

United States o. Fisher (incidental and implied federal powers), 2 Craoch 

(U.S.) 358 .. ... 652 

United States v. Forty-three Gallons of Whisky (treaty— law of the land), 93 

U.S. 1S8 ... ;.. ^ ... 769 



TABLE OF cases; 



PAGE. 

United States v. Gale (federal suffrage — protection), 109 U.S. 65 470 

V. Gay, 163 U.S. 427 {See United States v. Realty Co.) 

V. ex rel. Goodrich v. Guthrie (mandamus to federal officer), 17 

How. (U.S.)284 782 

United States v. Great Falls Manufg. Co. (Private property taken for federal 

purposes), 112 U.S. 645 642 

United States v. Harris (Implied powers conspiracy to deprive citizens of 

legal rights), 106 U.S. 629 796,961 

United States v. Hartwell (" officer of the United States"), 6 Wall. (U.S.) 385 784 
V. Hudson and Goodwin (jurisdiction over common law offences), 

7Cranch(U.S.)32 786,787 

United States t;. Jones (eminent domain), 109 U.S. 513 ... .. ... 640,641 

V. Lee (jurisdiction — suits against federal officers), 106 U.S. 196 773 

V. Marigold (Currency offences — implied federal powers), 9 How. 

(US.) 560 573 574,652,796 

United States r. Maurice (jurisdiction— suits by and against United States), 

2 Brock (U.S.) 109 ... 773 

United States v. Ortega (Minister —case " affecting), 11 Wheat. (U.S.) 468 ... 771 

V. Rauscher (treaty— law of the land), 119 U.S. 407 769 

r. Realty Co (Federal appropriating power), 163 U.S. 427 ... 666 

ex rel. Redfield v. Windom (mandamus to federal officer), 137 

U.S. 636 782 

United States v. Reese (rights and immunities — coustruction), 92 U.S. 214 468, 472, 796 

- V. Rhodes (naval and military power), 1 Abb. (U.S.) 28 ... 564 

". Rio Grande Damandlrrig. Co. (river navigation — irrigation), 

51 Pac. R. 674 880,890 

United States v. Rio Grande Dam andlrrig. Co. (river navigation— irrigation), 

174 U.S. 690 881,882,883,884,888,891,894 

United States v. Russell (eminent domain- compensation), 13 Wall. (U S.) 623 642 

V. Singer (federal excise tax), 15 Wall. (U.S.) Ill ^o'o 

V. Tappan (taxes and imposts), 11 Wheat. (U.S.) 419 ... ... 550 

V. Van Buskirk (federal excise tax), 15 Wall (U.S.) 123 ... 556 

Williams (federal territory — judicial authoritj'), 4 Cranch, 



C.C. (U.S.)393 ... - ()59 

United States v. Wilson (bankruptcy— discharge by State law— efTect), 8 

Wheat. (U.S.) 253 587 

United States v. Worrall (federal jurisdiction— common law offences), 2 Dall. 

(U.S.) 384 ' 785 

Unity V. Barrage (statute unconstitutional in part), 103 U.S. 447 796 

Uriah Tracey, Taft's Election Cases 3 437 

Valin V. Langlois (disputed election — Privy Council — special leave to appeal) 

5App. Las. 115 ... 497,752 

Van Allen v. Assessors (delegation of power — State tax on shares in national 

bank), 3 Wall. (U.S.) 573 949 

Vance v. Vandercook Co. (State liquor laws— the Wilson Act), 170 U.S. 438... 947 

Van Wyck i>. Knevals (railways in territories), 106 U.S 360 972 

Veazie v. Moor (river wholly within a State— improvement), 14 How. (U.S ) 568 540 

" ■ " • " .^ ^ . 5^3 

282 

... , 1 jurisdiction), 

7V.L.R. (L.)248 355,360 

Vidal 17. (Jirard's Executors (Christian religion recognized bv courts), 2 How. 

(U.S.) 127 *'... ...^ ... ^ ... 951 

Virginia, Exp (discriminating legislation— invalid), 100 U.S. 339 623 

Virginia v. West Virginia (jurisdiction— disputed boundaries) 11 "Wall. 

(U.S.) 39 ... *^ 775 

Virginia Coupon Cases (statute unconstitutional in part), 114 U.S. 269 ... 796 

Voiulit ». Wright (inspection laws— discrimination), 141 U.S. 62 944 

Wabash, St Louis and Pacific R. Co. v. Illinois (State regulation of extra- 
state railway rates— void), 118 U.S. 557 516, 520, 856, 857, 904 

Waldeni'. Skinner (jurisdiction— citizens of different states), 101 U.S. 577 ... 777 

Walker r. New Mexico and S.P.R. Co. (trial by jury), 165 U.S. 593 810 

Wall's Case (alien— disability), 6 Moo. P C. 216 600 

Wallace and Co. Exp. (customs duties collection— resolution of Assembly), 

13N.S.W.L.R 1 •; 859 

Walling V. Michigan (State licenses to sell imported liquor), 116 U.S. 446 

519, 846, 847, 856 



TABLE OF CASES. 



PAGE. 

Want r. Moss (injunction -jurisdiction), 12 N.S.W.L.R. Eq, 101 783 

Ward V. Marj'land (inter-state privileges and immunities), 12 Wall. (U.S.) 418 960 

Ware r. Hylton (treaty - enforced by legislation), 3 Dall. (US.) 199 .^36 

Waring v. Clarke (admiralty jurisdiction), 5 How. (U.S.) 441 ... ... ... 800 

Waterhouse v. Gilbert (appeal — " final and conclusive" ), 15 Q.B.D. 569 ... 746 

Wayman r. Southard (judicial power), 10 Wheat. (U.S.) 1 ... ... ... 719 

Welton V. Missouri (State peddler tax — when invalid), 91 U.S. 275 

515, 518, 520, 532-3, 847, 856, 857 
Western Union Tel. Co. ?■. Alabama State Board (telegraphic mes.'>agcs — 

inter-state commerce), 132 U.S. 472 ... ... ... ... . . 516,518,541 

Western Union Tel. Co. v. Massachusetts (intcr-state commerce — State tax 

on property), 125 U.S. 5.30 849 

Western Union Tel. Co. r. Pendleton (telegraphic messages— inter-state), 

122 U.S. 347 515,541 

Western Union Tel. Co. v. Taggart (inter-state commerce— State tax on 

property), 163 U.S. 1 849 

Western Union Tel. Co. v. Texas, 105 U.S. 460 {see Telegraph Co. v. Texas) 

West Ham Overseers v. lies (preamble), 8 A pp. Cas. 386 ... .. ... 284 

Westminster Bank, Be (House of Lortls may submit questions to judges), 

2 CI. and Fin. 191 766 

Weston V. Charleston City (State tax on federal stock — void), 2 Pet (U.S.) 

449 559, 949 

We\-mouth Corporation v. Nugent (Crown prerogatives), 34 L.J. M.C. 81 ... 321 

Wheaton r. Peters (no federal common law), 8 Pet (U.S.) 591 ... .. ... 593, 785 

Wheeling Bridge Case, 18 How. (U.S ) 421 {see Pennsylvania r. Wheeling 

Bridge) 
White's Bank r. Smith (regulation of ships — commerce), 7 Wall. (U.S.) 646 

518, 540, 874 

Whitney v. Robertson (treaty— law of the land), 124 US. 190 769 

Wiggins Ferrv Co. r. E^ast St. Louis (ferries over navigable streams), 107 

U.S. .365" ... 852,856 

Willamette Iron Bridge Co. v. Hatch (river wholly within a State — State 

and federal power), 125 U.S. 1 ... ... ... ... ... - ... 540,541 

Willard r. Presbury (federal territory— improvements), 14 WalL (U.S.) 676... 659 

V. Tayloe ("legal tender), 8 Wall. (U.S.) 557 575, 581 

Williams »' Peyton (|X)wer to tax — means to enforce), 4 Wheat. (U.S.) 77 ... 668 
Willson o. Blackbirfl Creek Marsh Co. (commerce — na^^gation — obstruction — 

police power), 2 Pet. (U.S.) 245 ... 516, 525-6, 527, 531, 852, 885 

Wilson r. Crossfield (fishery), 1 Times L.R. 601 569 

Wilts and Berks Canal Co. i'. Swindon Waterworks Co. (riparian rights — 

reasonable use), L. K 9 Ch. 451 892,894 

Wind V. Her (State tax on imports -original package), 93 Iowa 316 ... ... 846 

Windsor, Town of r. Commercial Bank of Windsor (Pro\incial tax on 

Dominion notes), 3 R. and G. (Nova Scotia) 420 554 

Winn V. Mossman (preamble), L R. 4 Exch. 292 ... ... ... ... 284 

Winona and St. Peter Co v. Blake (railroads— State regulation), 94 U.S. 180 857 

Wiscart y. Dauch^- (jurisdiction of federal courts), 3 Dall. (U.S.) 321 ... ... 738 

Wisconsin v. Duluth (navigable rivers— federal authorit}' to improve), 96 U.S. 

379 852,883 

Wisconsin v. Pelican Ins. Co. (federal jurisdiction — suits bv States), 127 U.S. 

265 ' ...518,775,777,778,963 

Withers v. Buckle}- (navigable waters— shores and soil), 20 How. (U.S.) 84 .. 532, 970 

Withipole's Case (indictment includes inquisition), Cro. Car. 134 808 

Wong Yung Quy, Be (corpse not property), 6 Sawj'. (U.S.) 442 518 
Woodrufi" V. Parham (imports and exports State tax on auction sales), 8 

Wall. (U.S.) 123 ... 845,943 

WooUey r. Ironstone Hill Lead Co. (appeal from State courts to Privy 

Council), 1 V.L.R. Eq. 237 738 

Worcester v. Georgia (national and fedei-al principles), 6 Pet. (U.S.) 515 ... 336 

Works V Junction Railroad (bridges over navigable rivers), 5 McL. (U.S.) 425 541 

Worms, Exp. (treaty— extradition), 221xiwer Can Jur. 109 ; 2Cartwright 315 770 

Yarbrough, Ex parte (protection of federal voters), 110 U.S. 651 471 

Yelverton r. Yelverton (divorc-e — domicile), 1 Sw. and Tr. 574 611 

Yick Wo I'. Hopkins (discriminating legislation against particular races), 118 

U.S 356 ... ... ... ... ... ... ... ... ... 622, 623 

ZoUverein, The (British ship — laws), 1 Sw. Adm. 96 .. 355 



^1^ 




By the QUEEN. 

A PROCLAMATION. 

YlC'TOKIA R. 

XXTHFiKEAS by an Act of Parliament passed in the 
^ Sixty-third and Sixty-fourth Years of Our Reign 
intituled, *'An Act to constitute the Commonwealth of 
Australia" it is enacted that it shall be lawful for the Queen, 
with tiie advice of the Privy Council, to declare by 
Proclamation, that, on and after a day therein appointed, 
not being later than One Year after the passing of this Act, 
the people <)f New South Wales, Victoria, South Australia, 
Queensland, and Tasmania, and also, if Her Majesty is 
satisfied that the people of Western Australia have agreed 
thereto, ol Western Australia, shall be united in a Federal 
ConimoHwealth under the name of the Commonwealth of 
Australia. 

And whereas We are satisfied that the |>eot»le of 
Western Australia have agreed thereto accordingly. 

We therefore, by and with the advice of Our Privy 
Council, have thought fit to issue this Our Boyal Proclama- 
tion, and We do hereby declare that on and after the First 
day of January One thousand nine hundred and one, the 
people of New South Wales, Victoria, South Australia, 
Quee7island , Tasmania, and Western Australia shall be 
united in a Federal Commonwealth under the name of the 
Commonwealth of Australia. 

Given at Our Court at Balmoral this Seventeenth day 
of September, in the Year of our Lord One 
thousand nine hundred, and in the Sixty-fourth 
Year of Our Reign. 

God Save the Queen. 



ERRATA. 



PAGE. 

50, line 17. For " 30 Vic. c. 11, s. 38," read " 32 and 33 Vic. c. 11, s. 8 " 
213, line 9, For " 10,000 " read " 80,000." 

298, line 15 from bottom. For " 48 Vic. No. 3 " read " 48 and 49 Vic. c. 23." 
318, line 11. For " (1640) 16 Char. I. c. 10" read " (1679) 31 Char. II. c. 2." 
322, line 8. For " 3 and 4 Will. 4" " read 5 and 6 Will. IV." 
548, line 3 from bottom. For " import " read " export." 
949, line 23 from bottom. For " Bank Tax Cases," read " Van Allen v. Assessors " 



ADDENDUM. 



New Ministry in Victoria. — On the loth November, 1900, in consequence of a 
no-confidence vote by the newly-elected Legislative Assembly in Victoria. Mr. Allan 
McLean tendered the resignation of his Ministry (see p. .374, injra), which was accepted. 
Sir George Turner formed a new administration, consisting of the following members, 
who were sworn in on 19th November :- Premier, Treasurer, and Commissioner of 
Customs, the Right Hon. Sir George Turner, P.C., G.C.M.G. ; Attorney-General, the 
Hon. I. A. Isaacs ; Chief Secretary and Minister of Labour, the Hon. A. .J. Peacock ; 
Minister of Public W^orks and Railways, the Hon. W. A. Trenwith ; Minister of 
Agriculture, the Hon. J. Morrissey ; Minister of Lands, the Hon. D. J. Duggan ; Minister 
of Mines and Water Supply, the Hon. J. B. Burton ; Postmaster-General and Minister 
of Public Instruction, the Hon. W. Gurr ; Solicitor- General, the Hon. A. Wynne, 
M.L.C. ; Minister of Defence and Health, the Hon. W. McCuUoch, M.L.C. : Ministers 
without portfolio, the Hon. E. J. Crooke, M.L.C, the Hon. P. Phillips, M.L.C., the 
Hon. S. Gillott, M.L.A., the Hon. R. McGregor, M.L.A. 



HISTORICAL INTRODUCTION. 



P^RT I. 
ANCIENT COLONIES. 



(1) HELLENIC CITY-STATES. 



Colonies and Plantations. — The terms "Colouy" and ''Planta- 
tion " were originally applied to English settlements abroad, or small 
communities of English subjects established in foreign parts, princi- 
pally for the purpose of raising produce. They were never extended 
to English dominions in Europe, such as Dunkirk, Toulon, and Calais, 
whilst those places belonged to the kingdom, nor were they, nor are 
they at the present time used in reference to Jersey or Guernsey, or 
other islands in the English Channel. For some years the terms 
colony and plantation were used indiscriminately. In the reign of 
Charles 11. " Colony " came into general use, to denote the relation of 
dependence in which American Plantations stood to the Crown. A 
colony then came to mean a plantation which had a Governor and 
civil establishment subordinate to the mother country. In the statute 
7 and 8 William III. c. 22, declaring void Colonial Laws repugnant 
to English Law applicable to the colonies, and in the Navigation Acts 
afterwards passed, the two names are used without distinction. — 
Petersdorff's Abridgment, vol. V., p. 540. 

In connection with a new instrument of Government Avhich marks 
the transition from the colonial system planted in Australia over one 
hundred 3'ears ago to a new order of thing's, a higfher and more 
complex political organization, a larger measure of self-government, 
and a more matured social development, it will be fitting to draw 
attention to the origin and growth of British colonies, and to some of 
their leading characteristics and achievements, and to compare them 
with the colonies of antiquity with which they in some respects agree, 
but from which they in more respects differ. They agree in having, 
like the older types, sprung from a parent stock, but they differ 
materially in the circumstances and motives which led to their 
establishment, in their primary structure, and in their relations with 
the mother country, as well as in their career and progress. 

Greek Colonies. — Various tribes and divisions, of which the 
ancient Hellenic race was composed, participated in the settlements 
known as Greek colonies. The causes which led to these migra- 
tions were the pressure of population on the means of subsistence 
within the narrow limits of crowded cities ; internal dissensions conse- 
1 



HISTORICAL INTRODUCTION. 



quent on class domination and party faction ; and a love for maritime 
exploration and discovery. 

Among the first recorded of these settlements were the Ionian 
colonies. After the death of Codrus (b.c, 1100, according to the 
early legends of Greek history), Ionian adventurers sailing eastward 
and northward from Attica, established themselves in that part of 
Asia Minor along the shores of the ^gean sea from Phocaea to 
Miletus. Twelve cities were built, the principal of which were 
Ephesus and Miletus. They were severally independent of the States 
from which their founders had emigrated, but they formed a mutual 
association for common purposes known as the Ionic Confederacy. 
From this new centre expeditions went forth and planted commercial 
emporiums on the shores of the Black Sea, including one from Miletus 
which established Sinope, the greatest and most important of the 
colonial stations fronting the Euxine. Trebezus (Trebizond) was 
afterwards settled from Sinope. 

Whilst the lonians were thus engaged, another body of Greeks, 
^olians, proceeding from Thessaly and Boeotia, founded ^olian 
colonies on the northern islands of the ^gean sea, and on the 
northern part of the Avestern coast of Asia Minor. They also were 
united in a confederacy of twelve cities, called the ^olian Con- 
federacy, the chief of which were Lesbos and Tenedos. 

In like manner the Dorians, another Hellenic tribe, settled in the 
southern islands and in the southern part of the western coast of 
Asia Minor. Six of these cities formed themselves into the Dorian 
Confederacy. In 658 B.C., Greek emigrants from Megara established 
a colony at Byzantium, commanding an entrance to the Euxine, which 
grew into an important centre, and in after ages became Constanti- 
nople. The Dorians and other Greeks sailing along the Mediterranean 
westward and southward from their central home reached Sicily, 
Italy, Gaul (South France), and even Africa; planting in Sicily, 
Syracuse and Agrigentum, two of the most splendid cities of the 
ancient world; in the forked peninsula of Italy, cities such as 
Tarentuni, Sybaris, Croton, Metapontum, Ehegium, Cumje, and 
Neapolis (Naples), in which Greek civilization became so advanced 
and the colonists so numerous that Lower Italy was known as Grtecia 
Magna or Great Greece ; in the south of Gaul, Massilia (Marseilles), 
whicli for centuries was one of the most important commercial centres 
of the Meditei-ranean ; and on the northern shore of Africa, between 
the Nile and Carthage, Cyrene, occupying a fine maritime situation 
wliich developed into a city rivalling the Phoenician capital in wealth 
and splendour. 

The very name " Apoikia," by which these primitive communities 
were known, indicated their true character and origin. A Greek 
colony was not a mere plantation retaining its connection with the 
parent state from which its pioneers had emigrated ; it was literally a 
going-away-from-home, a parting, a complete separation. These 
colonial groups went away from their old city-states, like swarms 
from old hives, to cluster in new hives, to cultivate new lands, to 
found new cities, to establish new centres of trade and commerce. 
Following, in their tiny ships, the ebbs and flows of the great tidal 



ANCIENT COLONIES. 



sea, they, for the most part, clung to its coastal regions. They 
explored what was to them a new world of strange waters, and here 
and there on the narrow fringes of the seaboard they made camps 
which grew into towns and bustling cities, pulsating with new life 
and new energy. The situations selected afforded convenient sites 
within communication, by sea, with their ancient seats, and at the 
same time they were accessible to an avenue of retreat from the 
invasions of barbarous hordes, should they emerge from the interior. 

Greek colonization was not promoted by state-aid or state- 
patronage. It was in some instances prosecuted in spite of the 
opposition of Greek cities, from which the migrating swarms went 
forth. From small beginnings these insignificant groups, whilst pre- 
serving the laws, customs, and institutions of their mother-cities, 
which they regarded with respect and reverence, grew in power, 
influence, and importance, and became autonomous political com- 
munities. With one or two exceptions each of them enjoyed the 
unfettered right of self-government. Until they became subject to 
local despots, or were crushed by foreign conquest, the people of each 
colony exercised perfect freedom in the management of their own 
affairs ; they appointed their own leaders and magistrates, and, even 
in their foreign relations, they were independent of their mother-city ; 
they could declare war and make peace with her public enemies. In 
every respect, therefore, these small Greek societies were free and 
sovereign commonwealths, having the obligation to maintain that 
freedom and sovereignty against external attacks, by their own prowess 
and with their own resources. They owed no allegiance to any 
distant hereditary king, nor were they under subjection to any 
political state except their own. The mother-cities from which they 
had migrated regarded them as emancipated children over whom they 
exercised no direct authority or jurisdiction ; guaranteed them favours 
and assistance in times of difficulty and danger, and expected nothing 
in return except filial respect and gratitude. 

In the course of time some of these Greek colonies equalled if 
they did not surpass the mother-cities in wealth, population, art, 
philosophy and poetry, and in all the achievements of culture and 
civilized life. The only ties tending to draw them together in sym- 
pathy were those of common language, common religion and common 
blood ; vital forces which seldom fail to yield tremendous results in 
the history of mankind. This community of sentiment led in some 
instances to something like a federal union between the original states 
and their colonial offshoots ; such as the defensive league between 
Imperial Athens and the powerful Ionian cities of the JEgean sea and 
Asian shore, known as the Confederation of Delos. — Adam Smith's 
Wealth of Nations, pp. 249, 252, 454. Conversations Lexicon, vol. 
VI., p. 768. 

" The Greek colonist, citizen of a city, planted a city. Severed 
from his native city, severed perhaps by such a world of waters as 
that which parts Euboia from Sicily or by such a wider world of 
waters as parts Phokaia from Gaul, he could no longer remain a 
citizen of his own city ; he could no longer discharge the duties of 
citizenship on a distant spot ; he could no longer join in the debates 



HISTORICAL INTRODUCTION 



of the old agore ; he could no longer join in the worship of the old 
temple ; but he must still have some agore and some temple ; he must 
still have a city to dwell in, a city in which still to dwell the life of a 
free Greek, when he could no longer live that life in the city of his 
birth. So he planted a city, a free city, a city that knew no lord, 
that knew no ruling city, a city furnished from the first with all that 
was needed for the life of a Greek commonwealth, a city free and 
independent from its birth. And he dAvelled in the new city as he 
once dwelled in the old ; he gave himself to .make the new worthy of 
the old, the daughter worthy of the mother. But did he thereby 
deem that he had ceased to be a Greek ? Did he deem that he 
had severed himself from Greece ? Did he even deem that he 
had broken off from all duty and fellowship towards the city 
from whence he had set forth ? No ; dw^ell where he might, the 
Greek remained a Greek ; wherever he went he carried Hellas with 
him ; in Asia, in Libya, in Sicily, in Italy, in Gaul, far away by the 
pillars that guarded the mouth of Ocean, far away in the inmost 
recesses of the Inhospitable Sea, wherever he trod, a new Hellas, if 
we will, a Greater Hellas, sprang into being ; on those new shores of 
Hellas he kept his old Hellenic heart, his old Hellenic fellowship ; he 
still kept the tongue and customs of his folk ; he ciave to the gods of 
his folk ; he could go to the old land and consult their oracles, he could 
claim his place in their sacred games, as freely as if he still dwelled 
by the banks of the Spartan Eurotas or under the shadow of the holy 
rock of Athens. And how fared he towards the city of his birth, 
the metropolis, the mother-city of his new home, the birthplace and 
ci-adle of himself and his fellow-citizens of his new city ? Political 
tie none remained ; no such tie could remain among a system of cities. 
Parent and child were on the political side necessarily parted ; the 
colonist could exercise no political rights in the mother-city, nor did 
the mother-city put forward any claim to be lady and mistress of her 
distant daughter. Still the love, the reverence, due to a parent was 
never lacking. The tie of memory, the tie of kindred, the tie of 
religion, were themselves so strong that no tie of political allegiance 
was needed to make them stronger. The sacred fire on the hearth of 
the new city was kindled from the hearth of its mother; the parent 
was honoured with fitting honours, her gods were honoured with 
fitting offerings; her citizens were welcomed as elder brethren when 
they visited the younger city. And when the child itself became a 
parent, when the new city itself sent forth its colonies, the mother- 
city of all was prayed to share in the work and to send forth elder 
brethren of her own stock to be leaders in the enterprise of her 
children." — Freeman's Greater Greece and Greater Britain, pp. 26-29. 

(2) ROMAN COLONIC. 

Roman Colonies. — The Roman system of colonization differed 
materially from the autonomous settlements of the Greeks. A 
" Colony," as its derivation from the Latin " Colonia " denotes, was 
originally a plantation of coloni, or farmers, under the protection of 
the central government ; it was not an apoikia or a separate state. 



ANCIENT COLONIES. 5 



Roman colonies "svere established by the Roman government as a 
matter of national policy, and for political and military considerations. 
In the early history of the Republic, as the Romans gradually sub- 
jugated the various Italian races with whom they came into contact, 
lands of the conquered people were divided among Roman citizens, 
who were distributed in groups under military protection. 

AVhen the Etruscans were finally vanquished, numerous military 
garrisons, which developed into colonies, were founded in various 
parts of Etruria. The national character of the surviving Etruscans 
was in that way gradually destroyed, and they were ultimately 
Romanised. Florentia, one of the towns of Etruria, thus became a 
leading Roman colony; its greatness under the name of Florence 
dates from the Middle Ages. So when the Samnites were finally 
conquered Samnium was laid waste and most of the inhabitants were 
sold into slavery ; their places were supplied by Roman citizens 
clamouring for land. After the conquest of Cis- Alpine Gaul, Yenetia 
became a Roman dominion ; military stations were formed, and the 
land was divided among the victors, as in the case of Etruria and 
Samnium. When Trans Alpine Gaul was brought under the Roman 
yoke it was divided into four provinces, in each of which was 
established a military colony. The name and identity of one of them, 
Lugdunum, situated at the confluence of the Rhone and Saone, still 
survives in the name of Lyons. Similarly the name and identity of 
another, Colonia Agrippina, on the Rhine, settled by the Emperor 
Claudian, is preserved in the modern city of Cologne. 

For over three hundred years Britain, like Gaul, was subjected 
to the dominion of the Roman Empire. At the maturity of Roman 
occupation (304 A.D.) there were five divisions or provinces. Each 
of these provinces had a separate local ruler, subject to the Governor- 
General of Britain, who was appointed by the Emperor under the title 
of Prefect. This Prefect exercised all but sovereign authority, ha^'ing 
supreme military and judicial power. Under the Prefect was a Pro- 
curator or Qutestor, who levied taxes and administered the revenue. 
The chief military and civil power of the Roman Government was 
centralised in about one hundred cities ; the principal being London, 
Colchester, Bath, Gloucester, Chester, Lincoln, and Chesterfield. Most 
of these were built on lands which the Emperor had granted to the 
veterans of the conquering legions. The descendants of these 
warriors formed the greater part of the population of the cities. The 
ten largest cities enjoyed a special privilege, called the Jics Latii, an 
incomplete citizenship, which conferred on them the right to elect 
their own magistrates. The inferior ones, called Stipendiaries, were 
governed by ofiicers under the Prefect's authority, and paid tribute 
to the Emperor. — Cassell's History of England, Vol. L, p. 19. 



HISTORICAL INTRODUCTION. 



F-A.RT IT. 
MODERN COLONIZATION 



(1) IN AMERICA, AFRICA AND ASIA. 



Spanish and Portuguese Colonies. — It was a great day in the 
world's history when Christopher Columbus, a Genoese pilot, set sail 
from Spain with a small fleet of three vessels bound on that memor- 
able voyage which resulted in the discovery of America, and in the 
opening of new regions for the industrial activity and enterprise of 
civilized man. After years of endeavour he had convinced Ferdinand 
and Isabella of Spain that the realms of Indian wealth and treasure 
could be reached by sailing in the direction of the setting sun ; that, 
the earth being round, the countries of the east could be attained by 
sailing to the west, so that communication could be established over 
the whole world across the sublime highway of the ocean. Bold 
mariner was he, indeed, in that age, when the lamp of science burnt 
dimly, to gaze across the wild Avaves of the Atlantic, and, beyond its 
primeval darkness, to see the light of promise with its glimmering 
rays leading on to modern civilization. How transported with delight 
he was when, after tossing about in strange seas for twenty-one days, 
without sight of land, he saw grass floating on the waves, and birds 
appeared on the western horizon as the gentle messengers of a harbour 
of safety. It was on the night of the 12tli October, 1492, that 
Columbus from the deck of his vessel descried a dim light flickering 
across the waves ; and at 2 o'clock in the morning a cannon shot from 
the Pinta announced that a sailor had discovered land. 

That light was a spark that has since illuminated the whole world, 
and the cannon shot will be heard echoing through all time. To 
Christopher Columbus is due the immortal honour of having discovered 
the continent of America. He was the first of a long line of maritime 
pioneers and discoverers who lifted the curtain of the trackless deep — 
who ploughed their way from sea to sea, from ocean to ocean, from 
continent to continent, until the great work of circumnavigating the 
globe, so daringly begun, was duly accomplished. 

The second great voyage which largely assisted to expand the 
dominion of European civilization was that performed six years after 
the discovery of America, by Vasco da Gama, a Portuguese navigator. 
To that distinguished man was entrusted the execution of the project 
of sailing from Portugal to India round the continent of Africa. It 
may seem strange that both the expedition of Columbus and that of 
Vasco da Gama were launched for the purpose of reaching India. 
But the fact is that the nearest and safest route to the riches of Cathay 
and the trade of India was, to the commercial nations of the south- 
west of Europe, a problem of vital importance; they wished to com- 
pete with Venice and Genoa, which long enjoyed the monopoly of 
that trade by way of eastern caravan routes. Hence it was that the 



MODERN COLONIZATION. 



Portuguese were endeavouring to explore the western coast of Africa, 
with a view to reaching India by passing round its most southern 
promontory, many years before Cokimbus conceived the daring idea 
of sailing westward to India, in essaying which he was stopped by the 
Isthmus of Panama. 

The Cape of Good Hope was discovered by Bartholomew Diaz in 
1486. It was doubled by Vasco da Gama's fleet in November, 1497, 
and subsequently he arrived at Calicut, on the Malabar coast of India, 
the goal of his enterprise, where he established a trading station 
which marked the beginning of the European conquest of India. In 
comparing the achievements of Columbus and Da Gama as pioneers 
of oceanic exploration, it may be noted that whilst Columbus crossed 
a wild waste of waters, upon which man had never previously 
ventured, Da Gama, in circumnavigating Africa, followed the track of 
Pharoah Necho, an Egyptian king, whose ships had sailed round 
Africa more than 2,000 years before. But, for supreme grandeur, no 
exploit in the history of the human race is equal to the voyage of 
Fernando Magellan, a Portuguese mariner, who inaugurated an 
expedition which first sailed round the world, demonstrating beyond 
all doubt the rotundity of our planet, and leading the way to the 
discovery of new islands and a new continent in the Southern Hemi- 
sphere. In September of the year 1519 Magellan was entrusted by 
Charles Y. of Spain with the command of a fleet of five ships fitted 
out for the purpose of exploring the southern seas. Magellan 
succeeded in discovering the famous straits which bear his name, 
running between the southern headland of South America and Terra- 
del-Fuego; thence he passed into the broad expanse of the Pacific 
Ocean, to which he gave its present name. Continuing his voyage, 
he sailed on, and on, month after month, undergoing pi'ivations and 
encountering perils, until at last, in the year 1521, he arrived at the 
Philippine Islands, north of Australia, where he was killed in a 
skirmish with the natives. His vessel, conveying his records, charts 
and observations, was brought back to Spain by way of the Cape of 
Good Hope. The circumnavigation of the globe was thus completed 
after a three years' voyage of unparalleled difliculty and danger; the 
saddest event of the expedition being the loss of its intrepid com- 
mander before he had seen the accomplishment of his world-wide 
enterprise. It must be admitted that this voyage was the most 
triumphant in the whole record of navigation, ancient or modern. 
It was Magellan who burst through the gates of the American 
continent ; it was he who first navigated the majestic Pacific, with its 
numerous islands and its mighty highway from America to the Indian 
Ocean, preparing the way for much that was to follow in the fulness 
of time. Well has Dr. Draper written of Magellan — " He impressed 
his name on earth and sky ; on the straits connecting two oceans, 
and on clouds of starry worlds seen in the southern sky." — The 
Intellectual Development' of Europe, Vol. II., p. 169. 

Pioneers of Modern Colonization. — Christopher Columbus, Vasco 
da Gama and Fernando Magellan were the first great pioneers of 
modern colonization to whom reference must necessarily be made in 
any account of the beginning and expansion of England's empire 



HISTORICAL INTRODUCTION. 



beyond the seas ; for, although theii- expeditions and discoveries were 
conducted in the interests and at the expense and direction o£ Spain 
and Portugal, the time came when England obtained possession of most 
of the countries which they added to the inheritance of civilized man. 
They prepared the way for Sir Francis Drake's circumnavigation of 
the earth in 1578, and for James Cook's voyage in 1769-70. The 
nation and the generation who sow the seed of progress do not 
always gather in the harvest, but sooner or later the human race, as 
a whole, enjoys and profits by what has been planted " with the 
blood and tears of a few." So it was in the case of those renowned 
navigators. Where now is the colonial empire of Spain ? Nothing 
remains; her provinces were lost in the hurricane of revolution and 
conquest. Where is now the colonial empire of Portugal ? Not an 
island of any consequence remains to speak of departed fame. 

To England fell the greatest and richest share of the glorious 
result of those three great voyages which " broke the night of ages ; " 
which ushered in modern times with all their bustling activity ; which 
directed the course of civilization from the east to the west — from 
rivers such as the Nile, the Tiber, the Euphrates, the Danube and the 
Rhine, and from inland seas, such as the Black, the Baltic and the 
Mediterranean, to the broad Atlantic and the far-reaching stretches 
of the Pacific Ocean. From that time the nations of the Medi- 
terranean were destined no longer to monopolize the commerce of the 
world. Egypt ceased to be the avenue to India ; Europe was startled 
by the intelligence brought in quick succession from the new world, 
and an impetus of an unprecedented character was given to the spirit 
of adventure and discovery. Then began the mighty race for slices 
of the new world. England, of the sixteenth century, was not 
behindhand ; she now began to lead the vanguard of nations in that 
grand struggle. See Seeley's "Growth of British Policy." 

In many respects the English at that time were peculiarly 
qualified for the work to be done. For over a thousand years the 
people of the island had been going through various stages of 
preparation and apprenticeship calculated to fit them for the arts of 
navigation and colonization. In the first place, England itself had 
been for many centuries a colony belonging to different and successive 
nations. The Phoenicians, the Romans, the Danes, the Saxons and 
the Normans, had, in successive periods, planted colonies in British 
soil, which left enduring traces in the country and in the character of 
the inhabitants. Then, again, the main element of the amalgamated 

Population of Britain was composed of a sea-faring people, having 
abits and instincts which attached them to the sea and its 
associations. Under these cii'cumstances it is hardly surprising to see 
the English come to the front in this remarkable epoch of geo- 
graphical discovery and maritime enterprise. 

North American Discoveries. — Four years after Columbus had 
discovered America, and whilst Vasco da Gama was preparing to 
circumnavigate Africa, John Cabot, a Venetian pilot, with his son, 
Sebastian, a native of Bristol, obtained from King Henry VII. letters 
patent authorizing them to proceed on a voyage of exploration 
towards the north-west, in order, if possible, to find, conquer and 



MODERN COLONIZATION. 



settle unknown lands for the English crown. The King supplied one 
ship, and the merchants of Bristol and London placed a few smaller 
ones at their disposal, and with this meagre fleet ihe Cabots, father 
and son, sailed forth on their dangerous enterprise. The result of 
this and succeeding voyages made by John and Sebastian Cabot were 
most momentous ; they laid the foundation of England's trans-Atlantic 
colonial empire. In June, 1497, they reached the coast of Newfound- 
land, or, as some think, of Labrador. Afterwards they sailed 
southwards along the eastern coast of the American continent as far 
as Cape Florida, near the Gulf of Mexico. They were the first 
Europeans who sighted and surveyed the coastline of the vast 
territory which was subsequently occupied by the thirteen original 
colonies, and which now belongs to the United States Republic. The 
discoveries of the Cabots gave England an international claim to the 
whole of North America, and that claim, although allowed to remain 
dormant for nearly a century, was eventually asserted in an emphatic 
and practical manner. 

The Spanish devoted their energies and resources to the conquest 
of Central America, and a part of South America, together with the 
adjacent islands known as the West Indies, whilst the Portuguese 
took possession of Brazil ; but neither of these nations explored or 
asserted a right to North America. Whilst the Spaniards and Portu- 
guese were plundering and enslaving the defenceless natives of the 
south, committing unspeakable outrages, and spreading unutterable 
ruin wherever the lust of gold induced them to extend their devasta- 
ting sway, the English by slow and cautious steps explored the 
apparently poor and inhospitable coast of North America. Many 
disasters and failures delayed the work of settlement. For many 
years after the Cabots, expeditions were sent across the Atlantic by 
English enterprise, for the purpose of finding what Columbus failed 
to discover — a north-west passage to India. At last these attempts 
were for the time given up ; the route of Yasco da Gama round the 
Cape of Good Hope was resorted to, and trading factories were 
established on the shores of the Indian Peninsula, which were the 
feeble beginnings of our Indian empire. 

First English Colonies in America. — After John and Sebastian 
Cabot, Sir Humphrey Gilbert and Sir Walter Raleigh were two of 
the most famous pioneers of English colonization in North America. 
Sir Humphrey Gilbert, an English navigator and maritime discoverer, 
obtained from Queen Elizabeth, in 1578, a patent empowering him ta 
discover and colonize any unsettled lands which he might reach. 
This was the first charter granted by an English monarch to found 
colonies. Two expressions from this remarkable instrument may be 
quoted : He was to take possession of " all remote and barbarous 
lands " and to govern them, subject to the proviso that " all who 
settled there should have and enjoy all the privileges of free citizens 
and natives of England." In his first voyage, in pursuance of this 
authority, he sailed for Newfoundland, but returned home unsuccess- 
ful. He sailed again in 1583, landed on the shores of Newfoundland, 
took possession of the harbour of St. Johns, and shortly afterwards 
lost his life in a storm whilst exploring the coast. In 1585 Sir Walter 



10 HISTORICAL INTRODUCTION. 

Raleigh, one of the most brilliant figures in the reign of Queen 
Elizabeth, promulgated a scheme for the settlement of those parts of 
North America not appropriated by Christian powers. Through his 
great influence with the Queen he obtained an extensive patent for 
that purpose, and by the assistance of wealthy friends and relatives 
two ships were fitted out for the expedition. It is interesting to 
observe that one of the clauses of Raleigh's first patent, like that of 
Sir Humphrey Gilbert, provided that the English subjects who 
accompanied him should have a guai'antee of the '' continuance and 
enjoyment of all the rights which they enjoyed at home." It was a 
maxim of the common law that, if an uninhabited country were dis- 
covered and peopled by English subjects, they were supposed to 
possess themselves of it for the benefit of their sovereign, and that 
such of the laws of England as were applicable and necessary to their 
situation and the conditions of an infant colony were immediately in 
force ; that wherever an Englishman went he carried with him as 
much of English law and liberty as the nature of his circumstances 
required. — Petersdorff's Abridgment, vol. Y., p. 540. Thus earl}^ 
was it recognised that Englishmen carried their political birthright 
with them over the broad surface of the earth ; that the charters of 
freedom for which their ancestors fought were not left behind, but 
accompanied them to their new homes beyond the sea. This was the 
fundamental principle of English colonization, and it presents a 
imarked contrast to the colonizing systems of Spain, Portugal and 
France. 

In this expedition Sir Walter Raleigh founded a settlement on 
Roanoke Island, in what is now North Carolina. A few years pre- 
viously a party of French Huguenots had settled at Port Royal, in 
what is now South Carolina, and had built a fort which they called 
" Arx Carolina " in honour of Charles IX. of France. They had, 
however, been murdered by the Spaniards from the adjoining tei'ritory 
of Florida. Raleigh's settlement was not successful and was soon 
broken up. His vessels brought to England some natural productions 
which proved the great value of the resources of the country, and 
another expedition was sent out under the command of Sir Richard 
•Grenville, a kinsman of Sir Walter Raleigh. This was more success-, 
ful, and resulted in the foundation of the colony of Virginia, so named 
in honour of the Virgin Queen Elizabeth. It was the first and greatest 
of the thirteen colonies established under the protection of the English 
flag. It is said that to Sir Walter Raleigh's expedition is due the 
introduction of the potato and tobacco plant into Europe. In these 
■early attempts at colonization failure and success were blended 
together, and it was not until about, the year 1606, in the reign of 
James I., that anything like safe and permanent settlement was 
•effected in these strange and distant regions. 

England's struggle with Spain had been long and deadly, but it 
ended with the defeat of the Spanish Armada in the year 1588. 
England became mistress of the sea, having only the Dutch as 
powerful rivals ; and thus there were no longer serious dangers in 
•the way of maritime discovery and adventure. 

The reign of the Stuarts, disastrous as it was to themselves, 



MODERN COLONIZATION. 11 

prolific as it was in civil war and revolution at home, was above all 
things distinguished by the growth and expansion of England's first 
colonial empire in Xorth America. Herein can be seen the vitality 
and energy of the people of whom we are the descendants, and whose 
political birthright we now enjoy with the fullest measure of freedom. 
During the tyrannical government of Charles I., the disorder and 
uncertainty of the Commonwealth under Cromwell, and the perse- 
cution and proscription of the Restoration under Charles II., 
thousands of Englishmen and Englishwomen fled from their land to 
seek for liberty and safety in the wilds of Xorth America, and these 
were the pioneers of that great development of emigration and 
colonization which paved the way for the establishment of a greater 
Britain in the new world. And here one general remark must be 
made as to the character of these momentous movements to which is 
mainly owing the stability and success of the early colonies of 
America. These colonies were founded by private enterprise, not 
with the assistance, but only with the official sanction of the Crown. 
This will be best understood by a brief reference to examples. 

In the year 1606, the year in which Torres passed through the 
straits, which now bear iiis name, and sighted the Australian coast, 
two companies were formed for the purpose of colonizing America — 
the London Company and the Plymouth Company. To the London 
Company was assigned by King James I. South Virginia, which 
extended from Cape Fear to the Potomac River; to the Plymouth 
Company was granted Xorth Virginia, which extended from the 
Hudson River to Xewfoundland. The country between the Hudson 
and Potomac was declared neutral territory. This division of 
Virsrinia, Xorth and South, included nearly the whole of the eastern 
fringe of Xorth America, but that divisional nomenclature was not 
long maintained. The London Company was the first in the field, 
and began the work of colonization in a practical manner, though at 
first with limited success. It was followed by the Plymouth Company, 
which also proceeded to distribute grants of land to actual settlers. 
The title of each of these companies was a charter from the Crown. 
The charter of the Loudon Company contained provision for the 
creation of governing councils ; one in London, appointed by the 
King, having power to appoint a colonial council, endowed with the 
absolute power of Government. The soil was vested in the Company 
by grant from the Crown. There was no mention made of repre- 
sentative assemblies in either charter, but each contained a clause 
somewhat similar to that of Raleigh's first patent, to the effect that 
" all British subjects who shall go and inhabit within the said colony 
and plantation, and their children and posterity, which shall happen 
to be born within the limit thereof, shall have and enjoy all the 
liberties, franchises, and immunities of free denizens and natural 
subjects within any of our dominions, to all intents and purposes, as 
if they had been abiding and born within their own realms of England 
or in any of our other dominions." This contained the germ from 
which afterwards sprang the system of representative self-government 
in the American colonies. In none of the charters, with the 
exception of that of Jamaica, to which allusion will presently be made. 



12 HISTORICAL INTRODUCTION 

was there an express grant of representative government, but the right 
was asserted as inherent to and necessarily a part of those liberties, 
franchises, and immunities granted in the charters. 

In 1607 Thomas Gates and Company sent out, under the leader- 
ship of Christopher Newport, three ships containing 105 emigrants, 
who were landed at Chesapeake Bay; and on the 13th May of that 
year the Commonwealth of Virginia was established by the building 
of Jamestown on the James River, which was so named in honour of 
the King. This party consisted of gentlemen of fortune, labourers, 
and other persons of no occupation, and without families, who were 
picked up in London. The friendly Indians sold them land and pro- 
visions, and they struggled along, clearing the wilderness and 
attempting to cultivate the soil. Owing to misgovernment and 
internal dissensions the infant colony was several times on the verge 
of starvation and dissolution. In 1609 the London Company super- 
seded Gates' Company in the management of the colony and sent out 
Captain John Smith, who by his prudence and good counsel saved the 
struggling community from destruction. It was next reinforced by 
fresh arrivals from England under the direction of Lord Delaware. 
By this time the permanent establishment of the new settlement was 
assured. Gradually a liberal element began to prevail in the manage- 
ment of the London Company, and in 1619 the first representative 
p,ssembly came into existence. In the quaint language of an old 
chi'onicle, "a House of Burgesses broke out in that year." The 
charter of James I. contained no provision for the creation of such an 
institution as "a House of Burgesses; " nevertheless that House was 
legally acknowledged by the Government of the mother country as 
being in strict accordance with the principles of Sir Walter Raleigh's 
patent, and with the general scope of the clause of the Company's 
charter. 

In the same year which saw the forerunner and type of all 
American assemblies, convicts were sent out to the colonies from 
England, and negro slaves were introduced by the Dutch. The 
element of convictism and slavery did not spread to any very large 
extent in the early history of America, but they afterwards became 
the plague spot of England's colonial empire. The practice of negro 
slavery and the transportation of convicts was first introduced by the 
Portuguese and the Spaniards. And the system was too readily 
followed by other nations. 

In 1624, the London Company surrendered its charter to the 
Crown, but the House of Burgesses elected by the people survived the 
surrender of the charter, and maintained the power of legislation and 
taxation, subject to the veto of the Governor. We have referred to 
the preliminary history of Virginia at some length, because it was the 
earliest settled, and the largest, richest, and most populous of all the 
original thirteen states. It was afEectionately called the " old 
Dominion," and also the "mother of Presidents," because four out of 
live Presidents who ruled the Republic up to the year 1824 were 
natives of Virginia. It was the birthplace of George Washington, 
Thomas Jefferson, Richard Henry Lee, and Patrick Henry, who 
became the leaders of the revolution. 



MODERN COLONIZATION. 13 

Before passing from Virginia, reference should be made to four 
other colonies adjacent to it which were carved out of the original 
grant of territory to the London Company. In 1623, Sir George 
Calvert, afterwards the first Lord Baltimore, received a grant of land 
forming part of Virginia from Charles I. for the purpose of forming a 
proprietary colony. It was called Maryland by way of compliment to 
Queen Henrietta Maria. The first Lord Baltimore died before the 
letters patent were sealed, but the second Lord Baltimore carried out 
the scheme in 1632. The Baltimores were Eoman Catholics, and 
Maryland was settled by Catholic gentry and others belonging to that 
Church, who were driven from England during the fierce persecutions 
of these times. Maryland became the "land of sanctuary ,'' and 
claimed the proud distinction of being a refuge for the toleration of 
all religious denominations. Its form of administration was by a 
Governor having a patent right to veto acts of the legislature, which 
consisted of an [Jpper House nominated by him, and a Lower House 
elected by the people. The colony, according to the patent, belonged 
to the proprietors, who nominated an administrative council and 
granted governmental privnleges, for which they received certain 
consideration. 

In 1662 the southern part of Virginia was granted as a proprietary 
colony to Lord Clarendon and others by Chai'les II. under the name 
of " Carolina." Its early population consisted for the most part of 
emigrants from Virginia. The young colony obtained a representative 
assembly in 1667, but its form of government was similar to that of 
the proprietary colony of Maryland. However, in 1717 the pro- 
prietors surrendered their patent to the Crown, and Carolina became 
a royal colony by purchase. In 1729, Carolina was divided into two 
separate and independent districts. North and South Carolina, which 
afterwards became two of the most important states of the union. 

Georgia, which was organised into a colony in 1732, was the fifth 
distinct settlement carved out of the Virginia foundation. 

Passing now to the northern group of colonies which were formed 
out of the territory assigned to the Plymouth Company, we find a 
record of progress and cultivation of the soil proceeding in the teeth 
of trials and obstacles as extraordinary as those experienced in the 
history of Virginia and its offshoots in the south. Under the direction 
and with the license of the Plymouth Company, a settlement was, 
during the year 1620, formed at Massachusetts Bay by the famous 
and heroic " Pilgrim Fathers," who were compelled to leave England 
on account of the persecution to which they were subjected for their 
non-conformity to the Church of England. The sailed from South- 
ampton for America to the number of 102 persons, in the Mayfloicer, 
a little vessel of 160 tons burden, and landed on 21st December, 1620, 
at a place which they named New Plymouth, where they long had a 
desperate struggle for existence owing to the coldness of the climate, 
the poverty of their circumstances, and attacks by the Indians. They 
were afterwards joined by a society of Puritans, who also sought 
refuge there from the ecclesiastical policy of Charles I. Massachusetts 
became the centre and leader of four important colonies which in a 
few years sprang into existence in the North, between the Hudson 



U HISTOEICAL INTRODUCTION. 



River and Newfoundland. They were known as the New England 
Colonies, New England being the designation applied to the whole of 
that region by Captain John Smith, who explored the coast in the 
year 1614. 

Settlers went to the south of Massachusetts, and formed the 
colonies of Connecticut and Rhode Island, which received separate 
charters from the Crown. A fishing village to the north of Massa- 
chusetts, established under a grant of land to one John Mason, became 
the nucleus of the colony of New Hampshire. 

Such were the four important plantations formed out of New Eng- 
land, the territory of the Plymouth Company. The Plymouth Company 
finally surrendered its charter, and Massachusetts received an inde- 
pendent charter from Charles I. in 1629, whilst Connecticut and 
Rhode Island received separate charters from Charles II. in 1662. 
These were the famous New England colonies, in which there was a 
larger measure of political freedom and local self-government than 
in any of the North American plantations. They were chartered 
colonies, in which the sovereign parted with his rights and preroga- 
tives either wholly or in part to the settlers, who elected their own 
representative assemblies, having the power of legislation without 
appeal to the Crown, there being no royal governor or royal agent 
within the colonies. They elected their own governors, as well as 
their Parliamentary representatives in the Upper and Lower Houses. 
The Home Government did not interfere with them in any way. 
They were, in fact, simple democracies, if not veritable republics, the 
highest achievement in the way of political organisation, and the 
nearest approach to independent states attained by any of the thirteen 
colonies before the revolution. The only terms and conditions under 
which these colonies held their charters of colonization were, first, 
allegiance to the Crown, and, secondly, that one-fifth of the gold and 
silver found within their jurisdiction should be paid to the King. In 
the year 1665, only 40 years after the foundation of Massachusetts, 
and 100 years before the Declaration of Independence, we find the 
people of that settlement asserting that they did not regard themselves 
as subject to England, and maintaining that as long as they paid one- 
fifth of all the gold and silver according to the terms of their charter 
" they were not obliged to the king, but by civility." These advanced 
ideas of colonial independence and autonomy received a startling 
development and a determined assertion during the subsequent con- 
flict with England, for it was in Massachusetts that the battles of 
Lexington and Bunker's Hill were fought. 

We have now referred to two groups of colonies, that of Virginia 
and that of Massachusetts, which are described as the original foun- 
dations of British colonization in North America. There remains a 
third group, which grew up in the neutral zone between the Potomac 
and the Hudson rivers, between Virginia and New England. Whilst 
settlement was proceeding in the vast country to the north and the 
south, this central territory was explored by the Dutch, who established 
a trading station at Manhattan, the site of the present city of New 
York. The Dutch Government assigned this locality to the Dutch 
West India Company. It was named New Netherlands, and the town 



MODERN COLONIZATION. 15 

which sprang into existence at the mouth of the Hudson, a river 
discovered by Henry Hudson, an Englishman in the service of the 
Dutch, was called New Amsterdam. The Dutch, however, had a very 
precarious title and tenure of this country, and they were soon 
cleared out of North America. After the restoration of Charles II. 
in 1660, England and Holland went to war, and a fatal blow was 
struck at the colonial possessions of the Dutch. An English fleet 
under Colonel Nichols proceeded to New Amsterdam and conquered 
it, driving out the Dutch, and converting it into an English settle- 
ment. It was granted as a proprietary colony by Charles II. to his 
brother, the Duke of York, after whom it received the name of New 
York. The Duke granted a part of the territory of New York to Lord 
John Berkeley and Sir George Carteret, who formed out of it the 
colony of New Jersey. 

In 1681, the square tract of country to the west of New Jersey 
was granted by Charles II. to William Penn, the celebrated English 
Quaker and philanthropist, in satisfaction of a monetary claim against 
the Crown. Here arose another proprietary colony under the never- 
to-be-forgotten name of Pennsylvania. Penn had been unjustly 
persecuted for his religious faith ; and his great desire was to 
establish a home for himself and his co-religionists in the distant 
wilderness of the west where they might enjoy religious and political 
liberty ; where they might preach and practice according to their 
convictions in peace and quietness. Penn planned and named the 
great city of Philadelphia, and framed a liberal constitution for the 
young settlement, which became what Maryland was to the Catholics, 
and New England to the Puritans — a refuge and a sanctuary for the 
persecuted brethren, hunted out of their native land. Penn also- 
purchased from the Duke of York a small strip of New York territory 
which was added to Pennsylvania until the revolution, w^hen it was 
erected into a separate State called Delaware. 

Classification of the Original Colonies. — Having sketched the 
thirteen original provinces of North America we are now in a position 
to consider generally their peculiar distribution and classification. 
First, as regards their location ; the southern group consisted of five — 
Virginia, Maryland, North Carolina, South Carolina and Georgia ; 
the northern group consisted of four — Massachusetts, New Hampshire, 
Connecticut and Rhode Island ; the central group consisted of four — 
New York, New Jersey, Pennsylvania and Delaware. 

The political constitutions, or forms of government of these 
colonies comprised three classes. First came the royalist colony of 
Virginia, which was always subject to the influence of the Crown 
more than in any other, even from the first, when the Executive 
Government was vested in a prerogative-created Council. Virginia 
became a thoroughly royalist colony in 1620, when the London 
Company decided to surrender its charter to the Crown. So New 
York, which began as a proprietary colony, was converted into a 
royalist colony when its proprietor, the Duke of York, became King 
as James II. Virginia may be regarded as the type and model of 
modern colonies, in which representative and responsible government 



16 HISTORICAL INTRODUCTION. 



is the prevailing system, with a Governor appointed by the Crown as 
the agent of the sovereign to watch imperial interests. 

The proprietary colonies were Maryland, New Hampshire, Penn- 
sylvania, Delaware, Carolina, New Jersey, Georgia, and, in its early 
career, New York. In this class of colonies the soil Avas granted to 
and vested in certain proprietors or companies, who exercised the 
governmental powers which, in royalist colonies, were enjoyed by the 
king; they appointed administrative Councils to conduct public 
business; and sometimes they nominated their Governors, who had by 
charter the right of veto on the legislation of the colonial assemblies. 
This plan of colonization, which may be compared to that adopted by 
the East India Company, was found not to work satisfactorily as the 
population increased, and as conflicts between private and public 
interests arose. In time the proprietors became tired of continual 
quarrels and dissensions with the colonists, and one by one they either 
surrendered or lost their charters, until by degrees all the colonies 
assumed the royalist form of government, with the, exception of two. 
The chartered, colonies were Massachusetts, Connecticut and 
Rhode Island, in which, by their original title deeds from the Crown, 
the people had the right of choosing their own Governors, their own 
magistrates, and their own representatives, to make, interpret, and 
administer their own laws. They could repeal and abrogate the 
common law of England, except the general law of allegiance and 
dependence, without the danger of a veto by the Home Government. 
They could also repeal and abrogate the statute law of England, 
except such Acts as were expressly applicable to the whole empire. 
Massachusetts, however, lost its charter in consequence of proceedings 
taken against it in England by Charles II. After that it became a 
quasi-royalist colony. At the time of the revolution in 1770, Con- 
necticut and Rhode Island were the only chartered colonies. It may 
be observed that the chartered colonies had a much larger instalment 
of constitutional liberty and local independence than any existing 
dependency of the British Crown. 

Speaking generally of this survey of the political organization of 
the early North-American settlements, it is to be remarked that in 
their matured history they had local autonomy, self-government, self- 
taxation, and political equality, and that there was no State Church 
and no official aristocracy to become an incubus or a source of strife 
and bitterness. The transplanted institutions and franchises of the 
old country took root and flourished in the new country under the 
guidance and protection of bold and hardy bands of pioneers, who 
laid the foundations of a mighty Anglo-Saxon empire along the coast 
of the Atlantic. They carried with them the traditions and charters 
of their ancestors ; Magna Charta, the Petition of Rights and the 
Bill of Rights formed a part of their political inheritance as much as 
those muniments of title were the birthright of those of their fellow 
countrymen whom they left behind them. 

We are now in a position to notice the truth and importance of 
the statement with which this account of the American colonies was 
introduced. They were established not by Government agency, 
assistance or direction, but by private adventurers, who left their 



MODERN COLONIZATION. 17 

native land in search of that freedom denied them at home. The 
Anglican Cavaliers of Virginia, the Puritans of New England, the 
Quakers of Pennsylvania and the Catholics of Maryland emigrated 
from the land of their forefathers, and fought their way in the 
waste wilderness of the new world in order that they might escape 
political proscription and religious persecution ; that they might 
establish hearths, homes and hamlets where they would be far away 
from tyranny, spoliation and martyrdom. In other words, these 
colonies were places of refuge from the fierce political and ecclesi- 
astical domination which prevailed in England in the seventeenth 
century, during the reigns of James I. and Charles I., the Protect- 
orate, and the Restoration under Charles II. and James II. 

West Indian Colonies. — Leaving the thirteen provinces of the 
mainland, let us now glance at the progress of English colonization in 
other parts of the globe during the later half of the seventeenth 
century. Barbadoes is the oldest discovered British colony in the 
West Indies. It was taken possession of in 1605, when a party of 
roving Englishmen planted a cross on the island, and inscribed the 
words "James, King of England;" but no actual settlement was 
effected on it until 1624, when a patent for the island was granted to 
the Earl of Carlisle, as sole proprietor. A large number of royalists 
emigrated to Barbadoes during the civil war between Charles I. and 
his Parliament, and it became a prosperous and populous sugar- 
producing colony. Bermuda, another of the earliest West India 
plantations, was colonized from Virginia and England shortly after 
1609. Jamaica, the largest and wealthiest of our West Indian pos- 
sessions, was taken from the Dutch by an expedition sent out by 
Oliver Cromwell during his protectorate in the year 1655. Charles II., 
after the restoration of 1660, sent a Governor to Jamaica, and 
provided for the creation of an elective Council to legislate for the 
colony. This has been described as the first representative colonial 
Constitution granted by the Crown of England to any of its posses- 
sions and plantations abroad; for it will be remembered that there 
was no express grant of elective assemblies by the Crown to any of 
the American colonies. In the eighteenth century Jamaica became 
the greatest sugar-producing country in the world, but it afterwards 
declined through the exhaustion of the soil and the competition of 
new sugar countries. 

Canadian Colonies. — Glancing northward of the New England 
colonies, we come to Newfoundland, which was discovered by 
Cabot in 1497 ; but England had a very doubtful title and precarious 
possession of that territory up to the end of the sixteenth century, as 
it was claimed by powerful and persistent French rivals. Newfound- 
land was not permanently settled by English emigrants until 1624, 
fourteen years after the planting of Bermuda. Though it was not 
that part of the American soil which was first settled from England, 
Newfoundland claims to be the earliest of existing British colonies 
from the fact that it was first discovered ; and in the Colonial Confer- 
ence held in London, in 1887, the representatives of Newfoundland 
were held entitled to the precedence attached to seniority. 

At the time when Newfoundland was first colonized. Nova Scotia, 



18 HISTORICAL INTRODUCTION. 

New Brunswick and Canada belonged to France by priority of occu- 
pation. Although the coast of Canada was discovered by Sebastian 
Cabot in 1497, its interior was not explored by Europeans until 1541, 
when Jacques Cartier, a French navigator, sailed up that great arm of 
the sea which penetrates into the lake country, to which he gave the 
name of the River St. Lawrence. Jacques Cartier founded the first 
settlement at St. Croix's Harbour, but little progress was made for 
nearly 100 years. In 1603, Samuel Champlain, a French naval officer 
and marine explorer, was commissioned to initiate colonizing establish- 
ments in the New World, and he is justly celebrated as the pioneer of 
French exploration in North America. In his first voyage Champlain 
ascended the St. Lawrence to the part where Jacques Cartier had 
been stopped. In his second voyage he visited the coast of Nova 
Scotia. In his third expedition, in 1608, he fixed the site of the town 
of Quebec on the heights of Abraham, overlooking the St. Lawrence, 
and he also ventured as far as Lake Ontario and Lake Champlain, to 
which he gave his name. Quebec was founded and French settle- 
ment began in Canada a few years before the voyage of the Mayflower, 
The French possessions were gradually extended westward and south- 
ward from the St. Lawrence to the Mississippi, and down that river to 
its mouth. The whole of the country at the back or westward of the 
thirteen states of America, the Hinterland, including the valley of 
Ohio and all Canada, was in the beginning of the eighteenth century 
claimed by France, which contended that the Alleghanies were the 
western limits of the British dominions. 

British Possessions in India. — Before proceeding to show how 
France lost that vast colonial empire, we may draw attention to the 
march of British influence and the planting of British trading stations 
in Africa and Asia. After many fruitless attempts to find a north- 
west passage to East India, English merchants, traders and adven- 
turers adopted the route discovered by Vasco da Gama, and sent their 
vessels to India by the Cape of Good Hope. In 1585, Queen 
Elizabeth granted a patent to a company to trade to Gambia, on the 
West Coast of Africa, but no settlement of any consequence was 
effected in that region until 1625. In its subsequent history Gambia 
became a notorious centre of the slave trade. 

In December, 1600, Queen Elizabeth granted a charter to a com- 
pany formed for the purpose of carrying on a trade with countries 
beyond the Cape and the Straits of Magellan. This company, which 
was the beginning of the famous East India Company, established a 
few trading factories in India, but their commerce was for many years 
very meagre. By the end of the eighteenth century the progress of 
the East India Company in the Peninsula of Hindostan had not 
advanced beyond the factory stage. The Company were simply 
leaseholders under the great Indian Princes, by whose leave they 
established trading stations in various localities along the sea coast. 
In the struggle for commercial ascendancy the East Indian Company 
had to contend with powerful rivalry from the French and the Dutch. 
But the Company, which was incorporated by Royal Charter and 
vested with sovereign powers by the Crown, ultimately became master 
of the whole of India. The history of its struggles and final triumph 



MODERN COLONIZATION. 19 

in laying the foundation of the British Empire in India is one of the 
most romantic and extraordinary in the whole record of colonization 
and conquest. These momentous events must be briefly summarised, 

Madras, the present capital of the presidency of that name, 
situated on the Coromandel (south-east) coast, was founded in 1639 
by the Company, who obtained from the Rajah of Chandgerry a grant 
of a piece of land for the erection of a town and fort. Fort St. 
George, built in this district, was the first place where the British 
obtained a permanent footing. Madras soon grew into a flourishing 
city and became the central station of the Company along the 
Coromandel Coast. 

Bombay is, next to Madras, the oldest British possession in India. 
It was granted to the Portuguese by an Indian chief in 1530, ceded 
by Portugal to England in 1661, and transferred to the East Indian 
Company by King Charles II. in 1668. 

The first factory established by the Company in Bengal was 
built on the HoogJy in 1664. The Company's representative, Job 
Charnock, was driven thence in 1686, and in 1690 he founded another 
settlement on the Hoogly, which expanded into the town of Calcutta. 
The site of the settlement was granted to the Company by the Nabob 
of Bengal, and the grant was confirmed by the Emperor Aurengzebe, 
the last of the Moguls. Fort William was built at Calcutta in 1699, 
and it was so named after William III. 

Such were the early and humble beginnings of the British East 
India Company. After the death of Aurengzebe, in 1 707, the native 
princes who owed feudal allegiance to the Mogul Empire began to 
quarrel among themselves, and the French and English interfered to 
quell the disturbances. It was then evident that the political 
organization of India was thoroughly rotten, and that only a strong 
arm was required to conquer and possess the whole country, and 
reduce the native princes to subjection. Then began the great con- 
test between the French and British in India for the ascendancy and 
empire. At first the French maintained their superiority, but in the 
end they were defeated and driven out of India by the Company's 
forces, and the victory of Lord Clive at the Battle of Plassy on 26th 
June, 1756, established the exclusive sovereignty and supremacy of 
the British in India. 

South African Colonies. — The Cape of Good Hope was first 
discovered in modern times by Bartholomew Diaz in the year 1486-7. 
The heavy seas which rolled along the coast prevented him from 
landing, and hence he named it the ''Cabo doz tormentos," the "Cape 
of Storms," but King John II. of Portugal altered the name to " Cabo 
da Bona Esperanza," the Cape of Good Hope. Yasco da Gama doubled 
the Cape a few years afterwards on his voyage to India. The Portu- 
guese, however, never formed any permanent establishment there. 
The Dutch took possession of it in 1650, and it became a powerful 
station for them in their journeys to and from their trading factories 
in India and Batavia. It was captured by the British in 1795, was 
restored to Holland at the Peace of Amiens in 1802, and was again 
captured in 1806. At the Congress of Vienna, in August, 1814, the 
Dutch colonies at the Cape of Good Hope, and in South America, 



-20 HISTORICAL INTRODUCTION. 

were ceded by the Netherlands Government to Great Britain, six 
millions sterling being paid as part consideration for the transfer. 
On 11th March, 1853, Cape Colony was granted a Representative 
Legislature, composed of two elective chambers, followed in 1872 by 
the concession of Responsible Government. Between 1861 and 1870, 
British Kaffraria was added to the colony, and in 1880 Fingoland and 
Griqualand West were similarly incorporated. In 1894 and 1895, 
West Pondoland and British Bechuanaland became part of the same 
growing Dominion. Dutch farmers or Boers, who left the colony 
shortly after 1835, established the Republics known as the Orange 
Free State and the Transvaal. 

In May, 1843, Natal, where the Boers were prevented from 
forming a republic, was proclaimed a British settlement and remained 
a part of Cape Colony until 1856, when it became a separate colony 
under a Royal Charter, authorized by statute, with a Governor and a 
Legislative Council partly elective and partly nominated. In 1 893, a 
new Constitution, embodying a bi-cameral legislature and accompanied 
by Responsible Government, was granted. In 1897, Zululaud was 
made a province of Natal. 

Through the enterprising operations of the British South Africa 
Company, led by Mr. Cecil Rhodes, the vast regions south of the 
Zambesi, known as Southern Rhodesia, formerly Mashonaland and 
Matabeleland, and north of the Zambesi known as Northern Rhodesia, 
including Nyassaland, have been, since 1888, added to the Empire. 
They are destined in course of time to be partitioned into a group of 
self-governing colonies. 

Conquest op Canada. — From this survey of the progress of the 
British flag in Asia and Africa, we return to our review of the march 
of events in the New World during the eighteenth century. The 
Seven Years War with France, which terminated in the Peace of Paris, 
1762, left Great Britain the first State in the world, with the equivocal 
reputation of the " Tyrant of the Seas." It was in this war that she 
completely established her supremacy on the ocean, which she first 
began to assert upon the defeat of the Spanish Armada. It was in 
this war, so vigorously prosecuted by the first William Pitt, after- 
wards Lord Chatham, that England obtained possession of the whole 
of North America, and drove the French out of Canada as they had 
been driven out of India. The story of the invasion of Quebec by a 
British expedition sent up the St. Lawrence under the command of 
General Wolfe, the scaling of the Heights of Abraham by our troops 
in the dead of night, the fierce battle which followed on the plateau, 
the gallant defence of the French under General Montcalm, the 
victory of the attacking party, and the death of both noble and 
heroic commanders in the midst of the fight, is one of the most 
thrilling in the whole range of naval and military history. This 
event was followed by the surrender of all Canada to the British, and 
the French power in that quarter of the globe was thus absolutely 
annihilated. But France had her revenge on Great Britain at a later 
date, when she assisted the American colonies in their revolt against 
the mother country. 



MODERN COLONIZATION. 21 

Loss OF THE American Colonies. — To those coloniee we must 
now once more refer^ and see how it came about that Britain lost the 
brightest jeweJ in the crown of a thousand years. During the first 
half of the eighteenth century the American colonies along the 
eastern coast of what is now the territory of the United States made 
enormous progress in settlement and internal prosperity. Neglected 
and uncared for in the early years of struggle, they sprang into 
importance and commanded attention from the people and govern- 
ment of England when their trade increased and their resources were 
developed. Whilst they enjoyed the amplest measure of local 
autonomy and local self-government, there was one serious exception 
and limitation to their legislative power. The Home Government 
claimed the right of regulating their external trade and commerce. 
Their export and imr»ort trade was watched with jealousy, and hedged 
about with hampering restrictions. They could not amend or repeal 
the slightest fiscal regulations, however obnoxious or oppressive. 
Apart from this, they had absolute freedom and independence ; but in 
matters of trade, the British Parliament asserted its supremacy. The 
Navigation Laws passed during the Commonwealth under Cromwell, 
and mainly directed against the Dutch, with a view to ruin Dutch 
commerce, and the Dutch mercantile marine, were the basis of the 
colonial policy which subsequently pressed so heavily on the colonies. 
The main provisions of these laws were that no commodities of Asia, 
Africa, or America could be imported into Great Britain or her 
colonies except in British ships. This restricted the markets of the 
colonies, as they could not trade directly with other nations. On the 
other hand, Great Britain imposed high protective duties on the goods 
of foreign countries in favour of her colonies. Then there was a 
restriction on the manufacture of their raw products by the colonies 
and on the direct importation of the goods of foreign countries. This 
constituted what is called the old " colonial system," which was at the 
root of the quarrel and the war which led to American separation. 

We are now brought down to the reign of George III., a period 
well described as " the most eventful in the history of the human 
race," marked by two thrilling tragedies — the War of American Inde- 
pendence and the French Revolution. It was in the year 1764, that 
George Grenville, the Chancellor of the Exchequer, nicknamed " The 
Gentle Shepherd," induced the House of Commons to take the fatal 
step of attempting to draw a revenue from America by the taxation 
of the colonies. By the Stamp Act, 5 Geo. III. c. 12, he secured the 
imposition of duties on certain commodities imported into America 
from other European colonies, and also stamp duties similar to those 
contained in our own Stamp Acts. This was a violation of the funda- 
mental principle of Constitutional Government — that there should be 
" no taxation without representation." 

The news was received in America with indignation, and with a 
stern determination to resist. Virgfinia took the lead in orsranizinsr 

-rrr 

confederate resistance. In the House of Burgesses at Williamsburg, 
Patrick Henry spoke against the Stamp Act with burning eloquence. 
" Cjesar had his Brutus,'^ he cried, "Charles I. had his Oliver Crom- 
well, and George III. " "Treason! Treason!" interposed the 



22 HISTORICAL INTRODUCTION. 



Speaker. "And George III. may profit by their example," replied 
Patrick Henry. "The torch of confederate opposition 'was carried 
through every colony like a fiery cross." — Casseirs History of Eng- 
land, vol. v., pp. 58-71. 

In October, 1765, the first Congress of Delegates was held in 
New York, at which resolutions were adopted, denying the right of 
the mother-country to tax the colonies without representation. The 
Stamp Act was repealed in the following yeai', by the Act 6 Geo. III. 
c. 11, but the British Parliament carefully avoided any appearance of 
a surrender of its rights. Indeed, it passed a Declaratory Act (6 
Geo. III. c. 12) affirming the subordination of the colonies and the 
supreme authority of the Crown and Parliament of Great Britain. 
The mad policy inaugurated by George Grenville was followed, in 
1767, by his successor, Charles Townshend, who as Chancellor of the 
Exchequer proposed the reduction of the Land Tax to relieve the 
country gentlemen, and, in order to make up the resulting deficiency 
in the revenue, determined to impose new taxes on goods imported 
into America, including tea. This scheme was carried in the Commons 
with the utmost indifference, and with hardly any debate. These 
Customs duties rekindled the fires of revolution in the colonies. The 
Republican party increased in power and influence. Non-importation 
societies were formed. Resistance and rebellion were openly advo- 
cated. The storm gathered in every quarter, and at last broke out in 
the seizure and destruction of several cargoes of dutiable tea in 
Boston Harbour. The Declaration of Independence was signed by 
the representatives of the thirteen colonies on the 4th July, 1776. 
The die was cast, and the great American catastrophe was brought 
about by the ruinous policy of " an infatuated King, a stone-blind 
Cabinet and a corrupt Parliament." The battle of Bunker's Hill, the 
surrender of General Burgoyne's army at Saratoga, the surrender of 
Lord Cornwallis' army at Yorktown, the mismanagement of British 
generals, the bravery of British soldiers, the pluck and patriotism 
of the colonial forces under George Washington, the recognition of 
the Independence of America in 1783, and the adoption of the federal 
constitution in 1787, are stirring events which can be only alluded to 
here for the purpose of urging a closer study. — Cassell's History of 
England, Vol. V., pp. 71-100. 

Britain's Second Colonial Empire. — During one of the exciting 
debates which took place in the British Parliament on the subject of 
the American War, Lord Shelburne exclaimed, " When the Inde- 
pendence of America is admitted, the sun of England will have set for 
ever." That prediction was doomed to be falsified. No doubt the 
loss of her American colonies was a fearful blow to the Britain of 1783. 
But the world was wide, and colonization was still young. Canada, a 
vast tract of country extending from the Atlantic to the Pacific 
Ocean, still belonged to Britain. Many loyalists fled from the southern 
colonies during the revolutionary wars and commenced the foundation 
of new settlements in Canada, which promised to be as great in wealth 
and population as some of the colonies that were lost. 

In 1791, by the Act 31 Geo. III. c. 31, Canada was divided into 
two provinces, Upper Canada, afterwards Ontario, and Lower Canada, 



MODERN COLOXIZATION. 23 

afterwards Quebec. In each province representative institutions were 
established, but the Executive was vested exclusively in the Crown. 
This system lasted until 1840, when the Canada Union Act, 3 and 4 
Vict. c. 35, was passed. (R. R. Garran, The Coming Common- 
wealth, p. 81.) Under this Act the two provinces were united 
in one Constitution. A new Parliament, consisting of a Legislative 
Council, nominated by the Crown, and a Legislative Assembly, elected by 
the qualified inhabitants, coupled with Responsible Government, was 
constituted for the United Provinces. The new machinery of govern- 
ment was brought into operation under the Governor-Generalship of 
Mr. C. Powlett Thompson (afterwards Lord Sydenham) on 30th June, 
1841. By the British North America Act, 1867 (30 and 31 Vict.c. 3) 
the two Canadas, Nova Scotia and Xew Brunswick, were federally 
united in one Dominion by the name of Canada. The new Constitu- 
tion was proclaimed on the 1st July, 1867, Lord Monck being 
Governor-General. The new province of Manitoba joined the Union 
in 1870, British Columbia and Vancouver Island in 1871, and Prince 
Edward Island in 1873. Newfoundland is the only British colony in 
North America which has not joined the Dominion. 

The southern hemisphere was destined to present to Great Britain 
a new Colonial Empire to replace the one that was lost. The same 
year, during which the Americans were welded " into a more perfect 
union" by their federal constitution of 1787, saw Captain Arthur 
Phillip, with the " first fleet," on his way to the Southern Ocean in 
order to establish a settlement on the eastern shores of Australia, 
which had just been discovered and explored by Captain Cook. 



(2) IN AUSTRALASIA. 



From Magellan to Cook. — No one man, no one nation, can 
exclusively claim the honour of having discovered Australia. Justice 
demands the acknowledgment that many brave mariners and the 
Governments of several pioneering and exploring countries assisted in 
the gradual unfolding of the situation and outlines of the great con- 
tinent. See Barton, ''History of New South Wales," Vol. I., pp. 25-39. 
In his interesting work, " The Discovery of Australia " (1895) Mr. 
George CoUingridge (Sydney) propounds the thesis that either 
Spaniards or Portuguese discovered and charted the continent as 
early as 1508. He publishes a copy of what purports to be a French 
map of the world by Oronce Fine, dated 1531, in which "Terra 
Australis " is represented as forming part of an extensive ant-arctic 
land, and another, dated 1546, in which it is described as Java-la- 
Grande, with a small channel dividing it from the true Java. In an 
article in the Geographical Journal, October, 1899, Mr. George 
Heawood expresses the opinion that there is no authentic evidence 
that Australia was discovered before 1606. A number of events and 
incidents have, however, been commonly associated with the history 
of Australian discovery prior to 1606 ; these cannot be passed over 
or disregarded ; they may be here mentioned with the observation 
that the evidence on which thev are based is vagme. 



24 HISTORICAL INTRODUCTION. 

It is said by some writers that in 1527 a Portuguese mariner 
named Menezis penetrated the Southern Ocean and touched at a 
group of rocky islands to which he gave the name of Abrolhos, and 
which may now be seen marked on the map, lying to the westward of 
Champion Bay, Western Australia. (Australian Hand Book, 1897, 
p. 363.) From maps and documents in the British Museum and the 
War Office of Paris, it would appear that a Provencal navigator, 
named Gillaume le Testu, a native of the French city of Grasse, dis- 
covered some portion of the Australian continent in the year 1531. 
Early in the year 1542 an expedition was despatched from Spain 
under the command of Luis Lopez do Yillalobos to follow up the 
voyage of Magellan in the Pacific Ocean. He took possession of the 
Philippines for Spain, and coasted along a large island to which he 
gave the 7iame of New Guinea, and which was then thought to be a 
part of the Great Unknown Southern Land, which Ptolemy, the 
geographer, supposed to exist south of the Indian Ocean. The next 
record is that in 1598, a Portuguese mariner named Houtman reached 
the Abrolhos, with which his name became associated. In 1605, 
Pedro de Quiros was despatched by the Court of Spain to the South 
Sea in command of a fleet of three vessels. On April 20th, 1606, he 
discovered one of the islands of the New Hebrides, which he believed 
formed part of the Southern Continent, and to which he gave the 
name of " La Austrialia del Espiritu Santo." In a memorial to 
Philip III. of Spain (the head of the house of Austria) de Quiros 
explained that he had named it " for the happy memory of your 
Majesty and for the sake of the name of Austria, because on your 
bii'thday I took possession of it." — Collingridge, Discovery of Aus- 
tralia, p. 248. One of his ships, commanded by Luis Vaez de Torres, 
became separated from the rest, and sailing westward he saw land 
which he believed to be the eastern extremity of New Guinea. He 
skirted along its southern coast and saw land to the south as he pro- 
ceeded westward and passed through those straits which now bear his 
name. Torres was probably the European who first caught sight 
of the continent, afterwards to be known as Australia. The stories 
with respect to Menezis and Houtman are unsatisfactory. — Story of 
Geographical Discovery, Joseph Jacobs (1899), p. 158. 

Other Avriters have, however, claimed for Dutch mariners the 
credit of being the first Europeans to sail in Australian waters. 
Wliilst the Spaniards and Portuguese were engaged in exploring the 
South Seas the Dutch were not idle. From Batavia, the central 
station of their Indian trade, they sent out ships in search of islands 
and commerce. On 18th November, 1605, the Dutch despatched the 
ship Duyfhen (Dove) from Bantam in Java, to explore New Guinea. 
It is claimed for the Duyfhen that she skirted the west and south 
coast of New Guinea for nearly one thousand miles, sighted Cape 
York, touched the eastern shore of the great indentation, afterwards 
known as Carpentaria; and that some of her crew landed on the 
shores of the Gulf and were killed by the natives. " The exact dates 
of the respective discoveries of Torres and the commander of the 
Duyfhen cannot now be ascertained; but as the Dutch vessel had 
arrived in the island of Banda, on her return to Bantam, in the month 



MO])ERN COLONIZATION. 25 

of June, 1606, while the letter of Torres, communicating an account 
of his vovage to the Spanish Admiralty, is dated at Manilla, in the 
month of August following, Captain Flinders conjectures, with everj 
appearance of probability, that the honour of the discovery of 
Australia is due to the Dutch, and that it must have taken place in 
the month of March, 1606, a few months before the discovery of 
Torres."— Lang's History of New South Wales (1875), p. 3. 

Eeferring to the conflicting claims for the honour of the dis- 
covery of Australia, Dr. Lang wrote : — ^' Whether these allegations, 
however, are well founded or not, we have to console ourselves, as 
Britons, with the comfortable reflection that, while neither the French 
nor the Dutch, neither the Spaniard nor the Portuguese, ever made 
any account of their alleged discoveries, we, the only practical people 
in the lot, have already, by following and settling in the track of our 
own great navigator. Captain Cook, founded a whole series of noble 
empires of the future in the Great South Land." — History of New 
South Wales (1875), p. 4. 

Many Dutch navigators explored the west and southern coast line 
of the supposed continent during the seventeenth century, and left 
behind them lasting evidences of their visits, in the shape of names 
of islands, capes, and bays, which now figure prominently on the map 
of Australia. The first authentic discovery of any part of the west 
coast of the continent is said to have been made by Captain Dirk 
Hartog, who sailed from Amsterdam, in the Endraaght (Concord), in 
1616. To the laud en the west coast near the 25th parallel, which he 
visited, he gave the name of his vessel : Endraaght^s Land. To one 
of the islands off the main coast he gave his own name. Dirk Hartog, 
and to another the name of Dorre, one of his sailors. The bay 
adjoining the island was afterwards named by Dampier Shark's Bay. 
In 1619 Captain Jan Edel visited that part of the coast south of 
Endraaght's Land. The south-west cape was rounded by Dutch 
mariners in 1622, and received the name of the vessel, '^Leeuwin" 
(Lioness), in which the discovery was made. In 1627 Captain Van 
Pieter de Xuyts in the Guide Zeepaert (Golden Serpent) cruised along 
a considerable part of the south coast of the continent, which he 
called Nuyts Land. Captain Pieter Carpenter, an oflBcer in the 
service of the Dutch East India Company, in 1627, explored and gave 
his name to the Gulf of Carpentaria. In 1628-9 Captain Pelsart, in 
command of the Batavin, was wrecked on the west coast at the spot 
known as Houtman's Abrolhos. The most important discovery made 
by the Dutch navigators, in the seventeenth century, was that of Abel 
Janssen Tasman. In 1642, Anthony Van Diemen, the Dutch Governor- 
General of Xetherlands India, organized an expedition to explore the 
coast of Australia, which had been sighted by so many Dutch adven- 
turers, but which still remained a terra incognita. Tasman was placed 
in command. He sailed from Batavia on 16th August, 1642, proceed- 
ing southward until he almost reached the 44th parallel. On 24th 
November, 1642, land was seen, to which he gave the name of Van 
Diemen's Land. The land first seen by Tasman is supposed to have 
been Point Hibbs. He saw and named Storm Bay ; discovered and 
named Maria Island, and then sailed eastward. On 18th December 



26 HISTORICAL INTRODUCTION. 

he discovered land, which he called Staaten Land, but which after- 
wards acquired the name of New Zealand; he anchored in a bay in 
the Strait, between the North and Middle Islands. He then sailed 
northward, passed and named Cape Maria Van Diemen, and made for 
the tropics, where he discovered the Tonga Islands. Had Tasman 
sailed from Van Diemen's Land northward instead of eastward, he 
would have anticipated Cook^s discovery of eastern Australia by one 
hundred years. In 1664, the country, whose leading outlines were 
yet dimly understood, was named New Holland by the States-General, 
and the discoveries of Tasman were proudly inscribed on the map of 
the world, cut in stone upon the New Staathaus in Amsterdam. 

In 1683, William Dampier, one of a company of bold buccaneers, 
started off on a voyage round the world. After passing through 
many wild adventures, Dampier obtained the command of a vessel 
called the Cygnet, in which he reached the Philippines, and thence he 
proceeded on a voyage to New Holland. He reached the west coast 
in latitude 16° 50' on 4th January, 1688. In his narrative he said : 
*'New Holland is a very large tract of land. It is not yet determined 
whether it is an island or a main continent, but I am certain that it 
joins neither Asia, Africa or America." Dampier returned to 
England on 2nd September, 1691. In 1699, King William III. 
organized an expedition for the discovery of unknown lands. 
Dampier was placed in command, the name of the ship in which he 
sailed being the Roebuck. He reached the coast of New Holland on 
4th July, 1699, and on the 1st August his ship struck the Abrolhos 
rooks, but escaped being wrecked. A harbour was found, which 
proved to be that of Dirk Hartog, who had anchored there in 1616. 
To this harbour Dampier gave the name of Shark's Bay. Afterwards 
Dampier sailed northward, passing in his course the archipelago which 
now bears his name. The coastline traced by him was apparently 
sterile and inhospitable. Dampier was the first Englishman who 
landed on the shores of New Holland. By some historians he has 
been styled the "prince of voyagers'' and "the Cook of a former 
age." European writers like Humboldt have borne testimony to his 
bravery, his skill, and his genius as a mariner, and to the value and 
accuracy of his reports concerning his discoveries. — Blair's History of 
Australia (1879), pp. 29-34. 

The only voyage of consequence between Dampier's time and 
that of Cook was one by Willem de Vlamingh, a Dutch navigator, 
who, in 1699, was ordered by his Government to search for the Dutch 
ship Bidderschap, which was lost in 1684. In his search along the 
west coast, in the Geeliruk, Vlamingh discovered and entered Swan 
River. 

Cook's Discoveries. — To Captain James Cook, one of Britain's 
bravest and most illustrious mariners, was reserved the immortal fame 
of commencing and completing a voyage of discovery next in import- 
ance to those of Columbus and Magellan, by which he solved the 
problem of the Great Southern Continent, discovered and explored 
the eastern shores of Australia — or New Holland, as it was then 
called — and took possession of it in the name of the British Crown. 
The immediate occasion and motive of Cook's first voyage was not a 



MODERN COLOXIZATIOX. 27 

thirst for gold or empire on the part of the British Government, but 
the conduct of a scientific expedition to the island of Otaheite, now 
called Tahiti, in the South Sea, for the purpose of observing the 
transit of the planet Venus across the sun's disc. On 26th August, 
1768, Captain Cook sailed from Plymouth in the Endeavour, a barque 
of 360 tons, originally built for the coal trade. The barque was 
victualled for an eighteen months' voyage. Among those on board 
were Mr. (afterwards Sir) Joseph Banks, President of the Royal 
Society ; Mr. Charles Green, Assistant Astronomer ; Dr. Solander, a 
Swedish Botanist ; Zackary Hicks, lieutenant ; Robert Molineux, 
master ; Charles Gierke, mate ; John Guthrey, boatswain ; Stephen 
Forwood, gunner ; John Satterly, carpenter ; William B. Monkhouse, 
surgeon ; Richard Orton, clerk. Cook's instructions were to sail to 
Otaheite, and after the completion of the astronomical observations 
to proceed south as far as the 40th parallel — with a view to ascertain- 
ing the existence of the supposed " Terra Australis," or Great Southern 
Continent (quite distinct from Xew Holland) which geographers 
believed to exist in polar regions — and then to steer westward until 
lie reached New Zealand, after which he was to return to England. 

The transit of Venus having been successfully observed, Cook 
and his party left Otaheite in the Endeavour on 13th July, 1769. He 
reached a latitude of 40° 12' without finding the imaginary continent, 
and then proceeded westward. After a run of about sixty-eight days, 
a lad on board the Endeavour, named Nicholas Young, saw land from 
the masthead, which afterwards proved to be the south-west point of 
Poverty Bay, New Zealand. That was on 6th October, 1769. Various 
parts of the island were visited, and on 10th November, 1769, Cook 
took formal possession of the country in the name of King George III. 
Having circumnavigated New Zealand and passed through the Straits 
which now bear his name, Cook, on 31st March, 1770, sailed from 
Cape Farewell towards the west, his plan being to steer westward 
until he should reach the east coast of New Holland, and then to 
follow the direction of that coast northward. On 18th April, 
Lieutenant Hicks caught sight of a projection of land which was 
named after him. Point Hicks. The name was subsequently changed 
to Cape Everard ; it is situated between Cape Howe and the entrance 
to the Snowy River. Proceeding northward, on 28th April, a bay 
was discovered and entered, and a landing effected. The name given 
to it at the time — as appears from Cook's private log — was " Sting-ray 
Harbour;" and its present name of Botany Bay, obviously suggested 
by Banks' botanical discoveries, appears for the first time in Dr. 
Hawkesworth's embellished narrative of Cook's voyages. See His- 
torical Records of N.S.W., Vol. I., p. 161. During his stay in Botany 
Bay Cook caused the British flag to be displayed on the shore ; and 
the ship's name and the date of his visit were inscribed on one of the 
trees near the watering place. On 6th May, 1770, the Endeavour 
resumed her voyage northward, and at noon on the same day Cook 
observed an opening in the coast which he called "Port Jackson," 
probably in honour of Mr. (afterwards Sir) George Jackson, one of 
the Secretaries of the Admiralty. See Historical Records of N.S.W., 
Vol. I., pp. 170-2. 



28 HISTORICAL INTRODUCTION. 

In the voyage northward all the prominent features of the coast 
were noted and named, including- Smoky Cape, Port Macquarie, 
Moreton Bay, Cape Capricorn, and other bays and capes. After 
skirting the dangerous coast for a distance of about thirteen hundred 
miles, the Endeavour narrowly escaped shipwreck by striking some 
coral rocks. On 21st October, 1770, Cape York was reached. The 
coast was followed in order to determine whether there was a passage 
between New Holland and New Guinea. A channel having been 
found, it was named Endeavour Straits — a name which has since been 
dropped in favour of Torres, the intrepid Portuguese who is supposed 
to have first sailed through. Cook landed and took formal possession 
of the whole country along which he had coasted. Cook's log, as 
" written up " by Hawkesworth, contains the following entry : — " I 
once more hoisted PJnglish colours, and though I had already taken 
possession of several parts, I now took possession of the whole eastern 
coast in right of His Majesty King Greorge III., by the name of New 
South Wales, with all the bays, harbours, rivers and islands situated 
upon it ; we then fired three volleys of small arms, which were 
answered by the same number from the ship. Having performed this 
ceremony upon the island we called it Possession Island." — Hawkes- 
worth, Voyages, Vol. III., p. 616. 

Legend has it that Cook gave this name to the country owing to 
a fancied resemblance to the Welsh coast about Swansea. It is re- 
markable, however, that neither his official log nOr his private log, nor 
any of the journals of the ship's company, mentions the name of New 
South Wales. It seems either to have been an after-thought, or to 
have originated with Hawkesworth.- See Historical Records of 
N.S.W., Vol. I., pp. 169-70. 

The first voyage of the Endeavour, and Cook's discoveries, con- 
stitute a story full of thrilling interest to Australians. His heroic 
services and his great work have not yet been adequately recognized 
by those of the British race who now possess and enjoy the glorious 
heritage, the Australian continent, which he helped so materially to 
bequeath to them. Whilst we are now celebrating the establishment 
of the Australian Commonwealth, and rejoicing at the beginning of 
a new era of national life which shall give us a more exalted citizen- 
ship, and a wider patriotism, let us not forget James Cook and his 
courageous comrades, who in a frail barque of 360 tons dared the 
storms of two oceans in search of new homes for the unborn 
millions of the British race. All honour to the name of Captain 
Cook ! 

Cook's second great voyage was commenced on 13th July, 1772, 
in the Resolution, 462 tons burthen ; he was accompanied by Captain 
Tobias Furneaux, in the Adventure, 336 tons. The object was to 
make further search for the supposed Southern Continent of the 
geographers. In this voyage Cook and Furneaux directed their 
course towards the South Pole, and penetrated beyond the Antarctic 
circle. On 8th February, 1773, the two vessels became separated. 
Cook then directed his course to Queen Charlotte's Sound, New 
Zealand, the appointed rendezvous. Captain Furneaux followed a 
more northerly course, coasted along the southern and eastern shores 



jNrODERN COLONIZATION. 29 



of Van Diemen's Land, and met Cook at Queen Charlotte's Sound. 
Subsequently Cook cruised in the Pacific, visited and named the 
New Hebrides group, landed on and named Xew Caledonia, dis- 
covered and named Norfolk Island. He returned to England on 30th 
July, 1775, after an absence of over three years, having conclusively 
proved that no Polar Continent existed in navigable seas. See 
Historical Records of N.S.W., Vol. I., pp. 333, 380. 

In 1776 Cook commenced his third and last voyage. On this 
occasion he was again in command of the Besolution, and was 
accompanied by Captain Clarke, in the Discovery, 300 tons. On 26th 
January, 1777, he arrived off the coast of Yan Diemen's Land and 
anchored in Adventure Bay, which had been so named by Captain 
Furneaux. On 30th January the Resolution and Discovery left Yan 
Diemen's Land and sailed for New Zealand. Thence they left for 
the Society Islands. Cook's tragic death took place at Hawaii, one 
of the Sandwich Islands, on 14th February, 1779. His work was 
done. Australia, Tasmania and New Zealand were by his labours 
for ever secured to the inheritance of the British people. 

Projects for Settlement. — The project of a settlement on the east 
coast of New Holland seems to have been due to the enthusiastic reports 
of Sir Joseph Banks as to the fertility and capacity of the country. 
Before a Committee of the House of Commons, appointed in 1779 to 
enquire into the question of transportation, he gave evidence that if it 
were thought expedient to establish a penal settlement in a distant land, 
" the place which appeared to him best adapted for such a purpose was 
Botany Bay, on the coast of New Holland." — Barton, History of 
N.S.W., Yol. I., p. xlv. The Committee, without recommending any 
particular locality, reported in favour of establishing a convict colony 
in some distant part of the globe. 

The existing laws, however, only authorized transportation to the 
colonies and plantations of North America (see the Act 4 George I. 
c. 11) ; and as the independence of the American colonies Jiad now been 
recognized, further legislation was necessary. Accordingly in 1784 
the Act was passed under which the first settlement of Australia took 
place, and which is dealt with in Part III. of this introduction. 

Mention may here be made of a proposal by an Englishman, 
James Maria Matra, to establish in New South Wales a free settle- 
ment for the American loyalists who had suffered for their allegiance 
to the Crown during the war, and who might wish to remain under 
the British flag. This plan, though it received the hearty support 
of Sir Joseph Banks, was not favourably received by the Government, 
and New South Wales thus missed the opportunity of being founded 
as a free and settled colony. — Barton, History of N.S.W., Yol I., 
pp. 1-10. 

From Cook to Flixders. — On 20th January, 1788, Captain Arthur 
Phillip arrived at Botany Bay with " the First Fleet," consisting of 
His Majesty's frigate Siriiis, in command of Captain John Hunter, 
accompanied by one armed tender, three store ships, and six trans- 
ports, conveying six hundred male and two hundred female prisoners, 
a guard consisting of one Major Commandant, three captains of 
marines, twelve sub-lieutenants, twenty-four non-commissioned officers. 



30 HISTORICAL INTRODUCTION. 

and one hundred and sixty-eight privates. There were also among 
them forty-two women, wives of the marines, together with their 
children. It was found that Botany Bay was not suitable for the 
proposed settlement. The ships remained in the harbour whilst 
Captain Phillip sailed along the coast in a boat for the purpose of 
examining the opening recorded by Captain Cook, and by him named 
Port Jackson. It was found to be a noble and beautiful harbour. 
In one of its many bays a site suitable for a settlement was selected, 
and named ''Sydney Cove" in honour of Viscount Sydney, one of 
the members of Pitt's administration. Eeturning to Botany Bay, 
Captain Phillip proceeded to make arrangements to send the ships 
around to Sydney Cove. Meanwhile two ships, flying the French 
colours, appeared on the scene. They proved to be the French 
exploring vessels Boussole . and Astrolabe, under the command of 
La Perouse ; they came there for wood and water. After delivering 
to Captain Phillip despatches to be forwarded to the French Govern- 
ment, La Perouse sailed away across the Pacific, and was never again 
seen or heard of, but in 1826 traces of his wrecked ship were found 
on the island of Vanikoro, near the Fijis. On 26th January the 
fleet sailed into Port Jackson. The people were disembarked at 
Sydney Cove. The British colours were hoisted. The Eoyal Pro- 
clamation and Commission constituting the colony of New South 
Wales were read. A salute was fired. The work begun by Cook 
was about to bear its fruit in the shape of Australian settlement 
and colonization. 

In April, 1791, George Vancouver, an English navigator, who 
accompanied Captain Cook on his second and third voyages, made 
a careful survey of the south-west coast of Australia, in the course 
of which he inspected a harbour which he named King George's 
Sound in honour of the reigning sovereign. 

In 1792, a French expedition, under Admiral Bruni D'Entre- 
casteaux in the Recherche, accompanied by Captain Huon Kermadec 
in the Eftperance, discovered Recherche Archipelago and Bsperance 
Bay, W.A., and then visited the coast of Van Diemen's Land, in 
search of the lost La Perouse. They passed through the channel 
bearing the name of the Admiral, and sailed up the Huon and the 
Derwent. 

In 1795 Captain John Hunter arrived in New South Wales, in 
the Reliance, to commence his duties as Governor in succession to 
Captain Phillip. There came with him two young men whose names 
have become honoured by their association with memorable events 
in connection with Australian maritime discoveries — Matthew Flinders, 
midshipman, and George Bass, surgeon. They afterwards took a 
leading part in exploring previously unknown tracts in Australian 
waters, and in solving geographical problems of great importance. 
On 3rd December, 1797, whilst Flinders was engaged on a surveying 
voyage at Furneaux's Islands, Bass, obtaining from the Governor the 
use of a whaleboat, a crew of six men, and provisions for six weeks, 
started from Sydney, cleared the heads and sailed southwards; 
explored the coast, discovered Twofold Bay, passed southward 
beyond the great projection of land, now called Wilson's Promontory, 



MODERN COLONIZATION. 31 

and then proceeded further westward until he discovered the harbour 
now known as Western Port. He had entered the channel which 
runs between Van Diemen's Land and Australia, though he was not 
certain of its continuity. In October, 1798, Flinders, associated with 
Bass, sailed from Sydney in a small decked vessel named the 
Norfolk, 25 tons; made for Van Diemen's Land; steered along its 
northern coast; discovered and entered Tamar heads and anchored 
in Port Dalrymple ; rounded the north-west headland (Cape Grim) 
and eventually circumnavigated the island, for the first time deter- 
mining its insularity. The name of Bass is immortalized in the 
Straits, to which, on the recommendation of Flinders, it was given. 
In 1799, Flinders was sent by Governor Hunter to explore the 
coastline north of Port Jackson. In the sloop Norfolk he proceeded 
along the coast, examined Moreton Bay and afterwards went as far 
as Hervey's Bay. 

On 17th March, 1800, Lieutenant James Grant was sent from 
England, in command of the surveying ship Lady Nelson, 60 tons, 
for the purpose of exploring the southern coast of Xew Holland. 
On rounding the West Australian cape, he shaped his course to 
reach Sydney through the Straits discovered by Bass and Flinders, 
instead of proceeding via Van Diemen's Land. On 3rd December, 
1800, Grant sighted a part of the coast of South Australia, to which 
he gave the name of Cape Northumberland. He also sighted and 
named other points, including Cape Bridgewater and Cape Otway. 
The Lady Nelson was the first ship to pass through Bass Straits 
from the westward. Afterwards Grant, in the Lady Nelson, surveyed 
the coast between Wilson's Promontory and Western Port. Lieu- 
tenant Murray succeeded Grant in command of the Lady Nelson. 
On 12th November, 1801, Murray started from Sydney for the pur- 
pose of prosecuting a more minute exploration along the south coast. 
This voyage resulted in the discovery of an opening between 
Western Port and Cape Otway ; it was first seen on 5th January, 
1802, but owing to unfavourable weather it could not be entered 
for several weeks. It was first inspected in a launch, by Mr. 
Bowen, the mate of the Lady Nelson, who entered it on 1st 
February. The Lady Nelson was then brought round from Western 
Port, and on 15th February passed through the narrow channel. 
This proved the gateway to what Murray described as "a noble 
harbour," which he named Port King, but the name was afterwards 
changed to Port Phillip, in honour of the first Governor of New 
South Wales. 

At about this time Flinders was on his way back from England 
in the flagship Livestigator, 334 tons. He reached Cape Leeuwin 
on 7th December, 1801; entered King George's Sound; surveyed 
the coast eastward; discovered and named Fowler's Bay, Smoky 
Bay, Streaky Bay, Port Lincoln, Spenser's Gulf, Hardwick Bay, 
Point Marsden, Nepean Bay, the Gulf of St. Vincent, Yorke Penin- 
sula, Mount Lofty, Kangaroo Island, and Backstairs Passage. At 
Encounter Bay he came across Commodore Baudin, in command of 
the French ship Geographe. 

In 1801 a French expedition commenced an exploration of the 



32 HISTORICAL INTRODUCTEOK 

Australian coast which has left enduring traces of its investigatioiis 
on the map of the continent. It consisted of three ships — the 
Geographe, the Naturaliste, and the Casurina. It was under the 
command of Commodore Baudin and his first lieutenant, M. Freycinet. 
They appeared to have examined a part of the west coast of the 
continent, and also the eastern coast of Van Diemen's Land, where 
they were engaged so long that Flinders, in the Investigator, had 
almost completed his survey of the southern coast when Baudin 
proceeded to explore from the east to westward. Referring to the 
meeting of Flinders and Baudin, Mr. David Blair wrote : " Flinders 
subsequently found that the French, by the orders of the Emperor 
Napoleon, claimed all the south coast as their discovery, and had 
named the various points along it by the names of the emperor and 
his courtiers. They even gave the whole territory the name of 
Napoleon Land. The officers of the Geographe knew well that all 
this was done without warrant, for one of them — M. Freycinet, first 
lieutenant to Captain Baudin — said afterwards to Flinders at Sydney 
Government House: * Captain, if we had not been kept so long 
picking up shells and catching butterflies in Van Diemen's Land, 
you would not have discovered the south coast before us.^ It is 
but justice to the French people to say that all idea of appropriating 
Flinders's discoveries has long since been abandoned by them." — ■ 
Blair's History of Australia, p. 115. 

Flinders proceeded on his voyage eastward, and on reaching 
Cape Otway he proceeded to explore the great indentation which 
Grant had reported. Flinders then discovered the opening within 
which was situated Port Phillip, which he entered on 27th April, 
1802, without having any knowledge of its having been previously 
(15th February, 1802) entered by Lieutenant Murray. " Strangely 
enough," wrote Dr. Lang, " Port Phillip was afterwards discovered, 
on 30th March of the same year, by Captain Baudin, of the French 
expedition; and again, on the 27th April following — all indepen- 
dently — by Captain Flinders; but the honour of the discovery is 
unquestionably due to Lieutenant Murray, who had preceded 
Captain Baudin six weeks and Captain Flinders ten." — History of 
New South Wales, p. 82. After quitting Port Phillip, Flinders 
proceeded on his journey to Sydney, which he reached on 9th May, 
1802. On his arrival there, he found the French ship Naturaliste 
in the harbour, to the commander of which, Captain Hamlin, he 
showed his charts of the coast between Cape Nuyts and Encounter 
Bay. — Blair's History of Australia, p. 116. 

In 1802, Governor King despatched Surveyor-general Grimes 
in the Cumberland to examine Port Phillip and to warn off Com- 
modore Baudin, who was known to be in the neighbourhood, with 
the Geographe and the Naturaliste, and meditating annexation of 
the south coast for the French Government. Grimes fell in with 
Baudin on 8th December at King's Island. Grimes delivered his 
despatches to Baudin, and after exploring King's Island he entered 
Port Phillip and proceeded to examine its coast line. On 2nd Feb- 
ruary, 1803, he ascended the Yarra. He was the first white man 
who trod the destined site of the city of Melbourne. 



MODERN COLONIZATION. 33 

The Name "Acstralia." — The continent of Australia was not 
yet known by that name. It was usually described, either by the 
old name, " Terra Australis/' given by the geographers, or by the 
Dutch designation of " New Holland." In 1606 de Quiros gave to 
an island in the New Hebrides, which he believed to be part of the 
Great Southern Continent, the name of " La Austrialia del Espiritu 
Santo" (seep. 24 supra). De3rosses, in his Histoire des Navigations 
aux Terres Australes (1756), coined the name *' Austral- Asia " to 
describe the islands in a part of the South Pacific. The word 
^"^ Australia " seems to have been first used by Dalrymple, in his 
Collection of Yoyages in the South Pacific, published in 1770, when 
Cook was actually in Australian waters. Dalrymple, however, 
applied the name, not to New Holland alone, but to " all the lands 
and islands to the westward of South America." The application of 
the word " Australia " to the Continent seems to have been first 
suggested by Matthew Flinders in 1814, and in about 1820 it came 
into general use. — Barton, History of N.S.W., vol. 1, pp. 86-93. 
In 1829 it first appeared in the Imperial Statute Book in the 
Act 10 Geo. lY. c. 22, which made legal provision for the 
settlement of ''Western Australia, on the western coast of New 
Holland." 

Greater Britain. — The limits of our space will not permit us 
to trace the progress of exploration and settlement along the shores 
and through the interior of Australia during the first century of its 
history. We can only present a brief sketch of the beginning and 
gradual development of Provincial Government in each colony 
leading up to the movement in favour of federal union. We bring 
to a close our review of the progress of British colonization with a 
few general observations on the relations of British colonies to the 
empire of which they form a part. The people of Australia are in 
the undisputed enjoyment and possession of one of the fairest 
countries beneath the sun, with all the rights and privileges of free 
institutions, political equality and local self-government. They are 
now entering upon that higher act of political union, at all times 
contemplated, with the inestimable advantage of forming an integral 
part of the British Empire. That Empire is much vaster in 
dominion, much richer and more populous than when Great Britain 
lost the United States. " The sun of England " has not set for 
ever. It shines brighter than ever ; brighter by reason of the pass- 
ing away of political darkness, misgovernment, corruption, and 
despotism; brighter by reason of the enlightened views of her 
statesmen and the enfranchisement of her toiling masses ; brighter 
by reason of the democratic constitutions which have been granted 
to her colonies and dependencies in all parts of the earth. The red 
line of British frontier has been creeping in advance of all the 
other national colours on the map ; stretching into distant " regions 
Caesar never knew." But in all this the policy of the nation has 
been colonization, not conquest ; the planting of people on the soil, 
and enabling them to build homes for themselves and reclaim the 
wilderness from the savage for their own benefit and the comforts 
and delights of existence ; not for the glorification of princes, or 



34 HISTORICAL INTRODUCTION. 

the enrichment of families in Europe, as was the case in the 
Spanish and French systems. 

Consider for a moment the vast magnitude, the enormous 
wealth, and the surprising population of the British Empire at the 
present time. There are about 56 colonies and dependencies recog- 
nizing the sovereignty of the Queen. The area at home and abroad 
amounts to 11,712,171 square miles; the coast line of this area 
exceeds in length the entire circumference of the earth, being 
28,500 miles; the total annual public revenue of Great Britain and 
her colonies and her dependencies for the year 1897-8 was 
£256,452,167; the annual value of exports £515,730,000, and im- 
ports £746,407,484 ; the population was 385,280,140. Such is the 
majestic fabric of the British Empire of to-day, of which Daniel 
Webster, the American orator, said so long ago as May, 1834, that 
she was the '^ power which dotted the surface of the whole globe 
with her possessions and military ^iposts, whose morning drum-beat, 
following the sun and keeping company with the hours, circles the 
earth with one continuous and unbroken strain of the martial airs 
of England.'^ 

From the contemplation of these facts we can, to some extent, 
realise the greatness of the birth-right which has descended to us 
through the labours, the enterprise, the patriotism, and the sacrifices 
of the pioneers of British colonization, and the builders of the 
British Empire. 



COLONIAL GOVERNMENT IN AUSTRALIA. 35 

F^RT III. 
COLONIAL GOVERNMENT IN AUSTRALIA. 



(1) NEW SOUTH WALES. 



Earliest Statutory Authority. — In 1784 the Imperial Parlia- 
ment passed the statute, 24 Geo. III. c. 56, intituled " An Act for 
the effectual transportation of felons and other offenders, and to 
authorize the removal of prisoners in certain cases, and for other 
purposes therein mentioned." This law empowered the King, with 
the advice of the Privy Council, to appoint places to which felons 
might be transferred. By an Order in Council bearing date 6th 
December, 1786, His Majesty's "territory of New South Wales 
situated on the east part of New Holland " was appointed a place 
for the reception of persons within the meaning of the Act. 

By letters patent and commission dated 2nd April, 1787, Captain 
Arthur Phillip was appointed Governor and Vice-Admiral of the 
territory. It was declared that the limits of his authority extended 
" From the north cape or northern extremity of the coast called 
Cape York, in latitude of 10° 37' south, to the south cape or southern 
extremity of the coast in latitude of 43" 39' south, and inland to the 
westward as far as 135" east longitude, reckoning from the meridian 
of Greenwich ; including all the islands adjacent in the Pacific 
Ocean within the latitudes aforesaid." The western or inland 
boundary was afterwards (1827) extended to the 129tli meridian. 
The Governor was empowered to make orders for the good govern- 
ment of the settlement. In the shape of ordinances, he created 
offences and crimes previously unknown to the law; he made regu- 
lations; he modified tlie application of the law of England in matters 
relating to police, tolls, and convict labour. His legislative powers 
were assumed to be founded on and justified by the prerogatives of 
the Crown. There is now reasonable ground for entertaining a 
doubt whether the Crown had authority to delegate such a power to 
the Governor. — Mr. Commissioner Bigge's Report (1823), p. 10; 
Bentham's Plea for the Constitution, IV., p. 255-60; Webb's Imperial 
Law, p. 25. 

The Judicial authority necessary for the government of the new 
settlement was derived partly from statute and partly from preroga- 
tive, similarly assumed to exist. The Act 27 Geo. III. c. 2, intituled 
"An Act to enable His Majesty to establish a Court of Criminal 
Jurisdiction on the eastern coast of New South Wales and the parts 
adjacent thereto," authorized the Crown by letters patent to erect 
a criminal court for the trial and punishment of treasons, felonies, 
and misdemeanours. This court, which was similar in its constitution 
to a court of Admiralty in its criminal jurisdiction, was composed of 
a Judge-Advocate and six naval or military officers to be selected 
by the Governor. There was thus ample statutory authority for 



36 HISTORICAL INTRODUCTION. 

the administration of criminal law according to a procedure suitable 
enough, perhaps, for a penal settlement, but not for a free com- 
munity. There was no statutory authority whatever for the creation 
of civil courts. The Imperial authorities seem to have considered 
that the Crown, in the exercise of its prerogative, could constitute 
civil courts. By letters patent, dated 2nd April, 1787, the Crown 
created a court of civil jurisdiction having power to deal in a sum- 
mary way with personal actions and probate and administration 
proceedings "according to the law of England." The civil court 
was presided over by the Judge-Advocate and two inhabitants of 
the settlement, appointed by the Governor. This civil procedure 
continued 'in operation until 4th February, 1814, when fresh letters 
patent were issued, formulating a new plan of administration, by 
which the civil and criminal jurisdictions, previously united in the 
Judge-Advocate, were separated. A primary civil court, presided 
over by the Judge- Advocate and two inhabitants appointed by the 
Governor, was established and endowed with jurisdiction in personal 
actions in which the amount involved did nob exceed £50. A 
Supreme Court, presided over by a Judge and two magistrates, was 
erected and clothed with jurisdiction in personal actions in which the 
amount involved exceeded £50, and with general jurisdiction in 
equity, probate, and administration matters. Eminent jurists are 
now of opinion that these civil courts were established by the Crown 
without any constitutional authority. The legislative power exercised 
by the Governor is also believed to have been equally unconstitu- 
tional. — Webb's Imperial Law, p. 24. 

The Governor was endowed with almost absolute power. His 
rule was a despotism, tempered by his own discretion and by the 
knowledge that he was liable to be called to account by the Imperial 
authorities for any maladministration. His oath of office principally 
required him to olsserve the law relating to trade and plantations. — 
Jenks' Government of Victoria, p. 11. Such was the legal authority 
under which, on 26th January, 1788, a penal settlement was estab- 
lished and for many years afterwards maintained at Sydney Cove. 
It was not at first intended to be a colony or plantation within the 
ordinary meaning of those terms, viz., for the purpose of trade and 
cultivation. — Clarke's Colonial Law, p. I. Lubbock v. Potts^ 7 East 
449. Webb's Imperial Law, p. 12. 

By the Acts 59 Geo. III. c. 114, 1 and 2 Geo. IV. c. 8, and 
3 Geo. IV. c. 96, the Governor of New South Wales was given 
limited powers to impose local taxation in the shape of Customs 
duties on spirits, tobacco and other goods imported into the colony. 

A Rudimentary Charter. — The temporary Act 4 Geo. IV. c. 96 
(1823), which became law during the governorship of Sir Thomas 
Brisbane, was the first legislation passed by the Imperial Parliament 
conferring anything like the rudiments of local self-government on 
the New South Wales community. It was intituled "An Act to pro- 
vide until the 1st day of July, 1827, and until the end of the next 
session of Parliament, for the better administration of justice in New 
South Wales and Van Diemen's Land, and for the more effectual 
government thereof ;" but it went a little beyond its title. The old 



COLONIAL GOVERNMENT IN AUSTRALIA. 37 

Military Courts of 1787 were abolished, and a Supreme Court and 
Court of Appeal, on something like the English model, were authorized 
to be erected. The Crown was empowered to create, by warrant, a 
Council consisting of from five to seven persons charged with certain 
legislative powers of a limited character. They were to be appointed 
during the pleasure of the Crown ; they could advise but not overrule 
the Governor in matters of legislation, and all laws and ordinances 
passed with their approval were required to be laid before the British 
Parliament. On 1 7th May, 1824, a charter of Justice, bearing date 
13th October, 1823, was promulgated, creating the Supreme Court of 
New South Wales, and appointing Francis Forbes, Esq., to be the first 
Chief Justice. On 1st December, 1823, five persons were appointed 
members of the Council, consisting of the principal Grovernment 
officials, viz., the Lieutenant-Governor, the Chief Justice, the Colonial 
Secretary, the Principal Surgeon, and the Surveyor-General for the 
time being. On 17th July, 1825, the Council was re-constituted and 
increased to its full number of members, including three private 
persons, residents of the colony. 

Up to the passing of the Act 4 Geo. lY. c. 96 (1823), Van 
Diemen's Land was a dependency of New South Wales. By sec. 24 
of that Act the Crown was authorized to proclaim Van Diemen's Land 
a separate colony independent of New South Wales. The history of 
New South Wales and Van Diemen's Land (afterwards Tasmania), as 
constitutional colonies, begins with the Act 4 Geo. IV. c. 96, which 
was their first charter of Government. 

The Act 9 Geo. IV. c. 83 (25th July, 1828), intituled '' An Act 
for the Administration of Justice in New South Wales and Van 
Diemen's Land, and for the effectual government thereof," was the 
second constitutional charter of Australia. It was passed during the 
governorship of Lieutenant-General Sir Ralph Darling. It re-enacted 
the main provisions of the temporary measure and made better pro- 
vision for the administration of justice. The civil and criminal juris- 
dictions of the courts were amended and improved, power being given 
to the respective Legislative Councils to introduce trial by jury in all 
criminal cases. It contained the well-known section (24), which 
enacts " That all laws and statutes in force within the realm of Eng- 
land at the time of the passing of this Act (not being inconsistent 
herewith, or with any charter, or letters patent, or Order in Council, 
which may be issued in pursuance hereof), shall be applied in the 
administration of justice, in the courts of New South Wales and Van 
Diemen's Land respectively, so far as the same can be applied within 
the said colonies ; and as often as any doubt shall arise as to the 
application of any such laws or statutes in the said colonies respectively, 
it shall be lawful for the Governors of the said colonies respectively, 
by and with the advice of the Legislative Councils of the said colonies 
respectively, by ordinances to be by them for that purpose made, to 
declare whether such laws or statutes shall be deemed to extend to 
such colonies, and to be in force within the same, or to make and 
establish such limitations and modifications of any such laws and 
statutes within the said colonies respectively, as may be deemed 
expedient in that behalf." 



38 HISTORICAL INTRODUCTION. 

Another interesting and important section of this Act was sec. 
20, in which it was recited that "it may be necessary to make laws 
and ordinances for the welfare and good government of the said 
colonies of New South Wales and Van Diemen's Land, and the 
dependencies thereof, the occasions of which cannot be foreseen, 
nor without much delay and inconvenience provided for, without 
entrusting that authority for a certain time, and under proper 
restrictions, to persons resident there." It was also recited that "it 
is not at present expedient to call a Legislative Assembly in 
either of the said colonies." It then proceeded to enact " That it 
shall and may be lawful for His Majesty, his Heirs and Successors, 
by warrants under his or their sign manual, to constitute and 
appoint in New South Wales and Van Diemen's Land respectively, a 
Council, to consist of such persons resident in the said colonies 
respectively, not exceeding fifteen nor less than ten, as His Majesty, 
his Heirs and Successors, shall be pleased to nominate." 

The Governors of the colonies of New South Wales and Van 
Diemen's Land, with the advice of the Legislative Councils so 
created, were authorized "to make laws and ordinances for the 
peace, welfare, and good government of the said colonies respectively, 
such laws and ordinances not being repugnant to this Act, or to any 
charter or letters patent or Order in Council which may be issued 
in pursuance hereof, or to the laws of England." This included 
certain limited powers of levying customs and excise taxation for 
local purposes, but it conveyed no control over the waste lands of 
the Crown. No proposed law could be passed by either of these 
Councils unless it was first laid before such Council by the Governor 
of the colony. The members of these legislative bodies held their 
seats at the pleasure of the Crown, and they had no control over 
the administration, which was exclusively vested in the Governor. 

At this time the official staff of the New South Wales Govern- 
ment consisted of a Chief Justice, an Archdeacon, a Colonial Secretary, 
an Attorney-General, a Collector of Customs, an Auditor-General, a 
Principal Surgeon, and a Surveyor-General. These appointments 
were made by the Imperial Government, During this period Ave 
find some of the earliest traces of a colonial Executive Council, a 
body which subsequently acquired in the Australian colonies a position 
analagous to that of the Privy Council in England. In the Commis- 
sion appointing Sir Richard Bourke Governor of New South Wales 
{25th June, 1831), he was authorized to nominate an Executive 
Council. This Council consisted of such of the leading government 
officials as the Governor thought fit to consult with in matters of 
local administration. — Jenks' Government of Victoria, p. 17. 

First Reprksentative Legislature. — The third important charter 
regulating the Government of New South Wales was 5 and 6 Vic. 
c. 76 (30th July, 1842), passed during the Governorship of Sir George 
Gipps. It was intituled " An Act for the Government of New South 
Wales and Van Diemen's Land," but it principally concerned, and 
was for the benefit of, New South Wales. The Legislative Councils 
established by previous Acts were purely nominee and irresponsible 
bodies. This Act established, for the first time in Australia, a legis- 



COLONIAL GOVERNMENT IN AUSTRALIA. 39 

lature partly, but not wholly, representative in its character. It was 
enacted that there should be within the colony of Xew South Wales 
a Leo-islative Council to consist of 36 members, 12 of whom were to 
be appointed by Her Majesty and 24 elected by the inhabitants of 
the colony. The Governor with the advice and consent of the Coun- 
cil was authorized to make laws for the peace, welfare and good 
government of the colony, including the power to impose duties of 
customs, provided that such laws were not to be repugnant to the 
law of England ; nor were they to interfere with the sale or appro- 
priation of lands belonging to the Crown or with the revenue arising 
from the same. Bills imposing duties of customs had to be reserved 
for the Queen's assent. The Council was to be presided over by a 
Speaker elected by itself. There was to be a session of the Council 
once every year, and every Council was to continue for five years 
from the day of the return of the writs and no longer, subject to 
be sooner dissolved by the Governor. Power was given to the 
Governor to establish, by letters patent, district Councils for the 
purpose of carrying on local government in such counties or other 
divisions of the colony as he might deem fit. Elective members of 
the Council were required to be the o\vners of freehold land of the 
clear annual value of £100, or of the capital value of £2,000. They 
had to be chosen by the votes of electors being owners of freehold 
land of the clear capital value of £200, or householders occupying 
dwellings of the clear annual value of £20. This Act also contained 
provisions relating to the giving or withholding by the Governor of 
the Royal assent to Bills passed by the Council, the disallowance of 
Bills assented to by the Governor, and the assent to Bills reserved 
by the Governor, and enacting that the Queen, by the advice of the 
Privy Council, or through one of her principal Secretaries 
of State, might convey instructions to the Governor for his guid- 
ance. 

This Act did not grant to New South Wales the system known 
as Responsible Government. The Governor was still his own prime 
minister, and the heads of the Departments and other public officers 
still continued to receive and hold their appointments from the 
Crown ; their tenure of office depended, not on their possession of 
the confidence of the Legislative Council, but on the pleasure of the 
Crown represented by the Governor. Although it was only a half 
measure and an instalment of political freedom, it marked the dawn 
of a new system. It contained the feeble germs of Representative 
Government, whence has since sprung the splendid fabric of the 
Parliamentary institutions in Australia. It was the first concession 
made by enlightened British statesmen to the growing wealth and 
importance of the Australasian colonies. Limited as were the pro- 
visions of this Constitutional Act, meagre as were the liberties con- 
ferred, it was nevertheless drawn on lines capable of development 
and expansion with the growing wants and aspirations of the young 
community. The Council was built partly on the representative 
principle, and the qualified electors of the colony had the predomi- 
nant power of .constituting twenty-four members, as against twelve 
nominated by the Crown. The new Council was opened by Sir 



40 HISTORICAL INTRODUCTION. 

George Gipps on 1st August, 1843, and among the electire members 
were — William Charles Wentworth and William Bland, for the city 
of Sydney; John Danmore Lang, Charles Nicholson, Thomas Walker, 
among the members for the District of Port Phillip (now Victoria) ; 
Charles Cowper, Richard Windeyer, George Robert Nichols. 

The next important charter of Representative Government in 
Australia was 13 and 14 Vic. c. 59 (5th August, 1850) intituled 
" An Act for the better government of Her Majesty's Australian 
colonies," and commouly known as the Australian Colonies Govern- 
ment Act. The Bill, of which this Act was the outcome, was first 
introduced into the House of Commons in June, 1849. The two main 
objects of the Act were the separation of the Port Phillip District 
from New South Wales, and the establishment in all the colonies of 
an improved system of Provincial Government. The Legislative 
Council, erected in New South Wales by the Act of 1842, was not 
materially disturbed. Its powers were in some respects increased, 
and the franchise on which its representative members were elected 
was liberalized. 

The Governor and Legislative Council of New South Wales 
were empowered to increase the number of members of that body, 
subject to the condition that one-third of its members were to be 
nominated by Her Majesty and the remaining members to be elected 
by the inhabitants of the colony. The property qualification of . 
electors was reduced in the case of freeholders from £200 to £100, 
capital value, and in the case of occupiers of dwellings from £20 to 
£10 per annum. The qualification of members remained as under 
the Act of 1842. 

Two new powers were conferred on the Governor and Legislative 
Council by this Act, which they did not possess by the Act of 1842. 
The Governor, with the advice of the Council, was authorized to 
impose and levy duties of Customs on the importation of goods, 
wares and merchandise imported into the colony from any part of 
the world, subject to the limitation that no differential duties could 
be imposed (sec. 27). There was no provision requiring Customs 
Bills to be reserved for the Queen's assent ; and all doubts whether 
such reservation was still necessary were afterwards removed by the 
declaratory Act 29 and 30 Vic. c, 74. Power was given to the 
Governor and Legislative Council, in common with the Governors and 
Legislative Councils of .the other Australian colonies, to alter the 
qualifications of electors and of members as fixed by the Act, or to 
establish, instead of the Legislative Council, a Council and a House 
of Representatives, or other separate legislative Houses, to be ap- 
pointed or elected by such persons and in such manner as should be 
determined, and to vest in such Houses the powers and functions of 
the old Legislative Council, provided that such Bill should be reserved 
for the signification of the Queen's pleasure (sec. 32). The Council 
was still unable to pass laws repugnant to the law of England or 
relating to the sale and appropriation of the waste lands of the Crown, 
which continued to be dealt with under Imperial Legislation (sec. 14). 
The Act 13 and 14 Vic. c. 59 was forwarded by Earl Grey to 
Governor Fitzroy, accompanied by a despatch dated 30th August, 



COLONIAL GOYERNMENT IN AUSTRALIA. 41 

1850, in which the Secretary ot State explained the views of the 
Home Government. The Act reached the colony on 11th January, 

1851, and was immediately proclaimed. In June following Governor 
Fitzroy received a commission under the Great Seal appointing him 
Captain-General and Governor-General of all Her Majesty's Aus- 
tralian possessions; a commission appointing him Governor of New 
South Wales ; and three separate commissions appointing him 
Governor of the colonies of Van Diemen's Land, South Australia and 
Victoria respectively ; also commissions for the appointment of Lieu- 
tenant-Governors of Van Diemen's Land, South Australia and Victoria, 
together with warrants delegating to the Governor of Xew South 
Wales and the Lieutenant-Governors of the other colonies the power 
to nominate non-elective members of their respective Legislative 
Councils. Each commission was accompanied by royal instructions. 

On 8th April, 1851, the Legislative Council of New South Wales, 
under the leadership of Mr. W. C. Wentworth, adopted a report of 
its select committee, which protested against the new Constitution 
Act on the grounds that it did not place the control of all revenue 
and taxation entirely in the hands of the Colonial Legislature ; that 
all offices of trust and emolument should be filled by the Governor 
and Executive Council, unfettered by instructions from the Secretary 
of State for the Colonies ; and that plenary powers of legislation 
should be conferred on the Colonial Legislature. It concluded by 
" solemnly protesting against these wrongs, and declaring and insist- 
ing on these our undoubted rights ; we leave the redress of the one 
and the assertion of the other to the people whom we represent and 
the legislature which shall follow us." — Tregarthen's Australian 
Commonwealth (1893), p. 139. 

An Electoral Bill for New South Wales was passed increasinor 
the number of members of the Council from 36 to 54, of whom 36 
were to be elective members and 18 nominee members. An Elec- 
toral Bill for Victoria was passed providing that the Legislative 
Council of that colony should consist of 30 members, 10 nominated 
by the Crown and 20 elective. 

Demand for Responsible Government. — A new election of the 
Legislative Council of New South Wales, on the liberalized fran- 
chise, then took place. The newly-constituted Council affirmed the 
opinion of its predecessor and passed a resolution that it was "pre- 
pared upon the surrender to the Colonial Legislature of the entire 
management of all our revenues, territorial as well as general, in 
which we include mines of every description, and upon the estab- 
lishment of a constitution similar in its outline to that of Canada, 
to assume and provide for the whole cost of our internal govern- 
ment, whether civil or military." In a despatch addressed to 
Governor Fitzroy, dated 15th December, 1852, Sir John Fakington, 
the Secretary for the Colonies, stated that Her Majesty's Govern- 
ment had been greatly influenced by the considerations arising from 
the extraordinary discoveries of gold in the Australian colonies, 
which had imparted new and unforeseen features to their political 
and social conditions. Such a state of affairs had no parallel in 
history, and in all human probability there would be an advance in 



42 HISTORICAL INTRODUCTION. 

the population, wealth and material prosperity, with a rapidity un- 
precedented. Her Majesty's Government had further observed with 
satisfaction the general order and good conduct which distinguished 
the behaviour of the multitudes attracted to the gold deposits, and 
they were also bound to recognize the firmness and good judgment 
of the local authorities. With this evidence before them Her Majesty's 
Government could not but feel that, whilst it was more urgently 
necessary than before to place the full power of self-government in 
the hands of the colonies, it was equally plain that the extraordinary 
increase in wealth and prosperity testified to their fitness to regulate 
their own affairs. In reply, therefore, to the desire expressed by 
the Legislative Council of New South Wales in favour of a Consti- 
tution similar in its outlines to that of Canada, it was the wish of 
Her Majesty's Government that there should be established, in each 
colony, a new legislature on the basis of an Elective House and a 
Legislative Council nominated by the Crown or appointed subject to 
the approval of the Crown. Upon the receipt of such a constitutional 
enactment, framed by the existing Councils, with civil lists for the 
payment of salaries of permanent oJSicers attached, the Imperial 
Government would undertake forthwith to propose to Parliament such 
measures as would be necessary to carry into effect the entire arrange- 
ment, viz. : — (1) By the repeal of the Land Sale Act, under which the 
sale of lands was vested m the Imperial authorities, and could not be 
regulated by colonial legislatures ; and (2) by the requisite alteration 
in the Constitutional Act of 1850 with the schedules annexed thereto. 
It was added that the civil lists should provide permanent appropria- 
tion for the maintenance of the salaries of the principal officers of 
Government, such as the Governor, heads of departments, judges, &c. 
" It is my wish," concluded Sir John Pakington, " that the change 
should be speedily and satisfactorily effected." 

The New Constitution. — On the receipt of Sir John Pakington's 
despatch a committee was appointed by the Council to draft a Consti- 
tution. Of that committee Wentworth was one of the leading spirits. 
By the terms of the Enabling Act 13 and 14 Vic. c. 59 s. 32, the 
Governor, with the advice of the Legislative Council, had been 
authorized to establish in the colony, instead of the Legislative Coun- 
cil, a Council and a House of Representatives, or other separate 
Legislative Houses, to consist of such members to be appointed or 
elected by such persons and in such manner as might be determined, 
and to vest in such Houses the. powers and functions of the Legislative 
Council for which the same were substituted. The Select Committee 
appointed to frame a new Constitution were not contented to establish 
a bi-cameral legislature capable of exercising only the powers and 
functions of the old Council. They considered it necessary that the 
new legislature should have " increased powers and functions;" and 
the Bill drafted by them was designed to confer on the new legislature 
increased powers and functions. In so doing the framers of the Con- 
stitution acted in excess of the authority conferred by section 32, and 
they ran the risk of the Royal assent being refused. This was what 
actually occurred to the first Constitution framed by the Legislative 
Council of South Australia. Nevertheless the leaders of political 



COLONIAL GOVERNMENT IN AUSTRALIA. 43 

thought in Xew South Wales, believing that the measure of power 
granted by the Constitutional Act of 1850 was not sufficient to meet 
the requirements of the colony, proposed that the new legislature 
should have an express and enlarged grant of powers and functions, 
without reference to the limitations of the Act of 1850. 

The opening section of the Bill provided that there should be, 
m place of the Legislative Council then subsisting, a Legislative 
Council and a Legislative Assembly, and that Her Majesty should 
have the power, by and with the advice and consent of the said 
Council and Assembly, to make laws for the " peace, welfare and 
good government of the said colony in all cases whatsoever.^' Mem- 
bers of the Legislative Council were to be nominated by the Governor 
with the advice of the Executive Council. The first nominees were 
to hold their seats for five years only, but subsequent nominees were 
to be appointed for life. The members of the Assembly were to be 
chosen by the electors upon the franchise prescribed in the Bill. 
Section 45 specially enabled the legislature so constituted to impose 
and levy duties of Customs. Section 47 provided that all revenue 
should form a consolidated fund to be appropriated by the legisla- 
ture in the manner directed. Two other sections conferred power to 
amend the Constitution, subject to certain conditions; another section 
declared that, subject to provisions therein contained, the legislature 
could make laws regulating the sale and disposition of the waste 
lands of the Crown. The final section stipulated that the Bill should 
not have any force or effect until inconsistent Imperial Acts were 
repealed and the entire management and control of the waste lands 
of the colony were vested in the proposed legislature. These grants 
of powers may be thus summarized : — 

1. To make laws in and for New South Wales in all cases 

whatsoever. 

2. To impose taxation, including duties of Customs. 

3. To appropriate revenue. 

4. To legislate concerning the waste lands of the Crown. 

5. To amend the Constitution of the Council and Assembly 

subject to certain conditions. 
Accompanying these grants there were certain restrictions : — 

1. That duties were not to be levied on supplies for Her 

Majesty's land and sea forces. 

2. That no fiscal and commercial laws should be passed in- 

consistent with treaties concluded by Her Majesty with 
any foreign power. 

3. That no differential or preferential duties of Customs should 

be imposed. 

4. That all Bills for appropriating any part of the public 

revenue or for imposing any new rate, tax or impost 
should originate in the Legislative Assembly. 

5. That it should not be lawful for the Assembly to originate 

or pass any vote, resolution or Bill for the appropriation 
of any part of the "consolidated revenue fund to any pur- 
pose which should not have been first recommended by a 
message of the Governor to the said Assembly. 



44 HISTORICAL INTRODUCTION. 

The Bill contained provisions relating to electoral matters ; re- 
specting the assent of the Governor to Bills, and the disallowance of 
Bills by Her Majesty ; also respecting the boundaries of the Aus- 
tralian colonies. Another section of some significance was one which 
provided that the appointment to all public ofiices, whether salaried 
or not, should be vested in the Governor, with the advice of the 
Executive Council, " with the exception of the appointments of the 
officers liable to retire from office on political grounds as hereinafter 
mentioned, which appointments shall be vested in the Governor 
alone."— Sec. 37. 

On 21st December, 1853, the new Constitution was adopted by 
the Council and transmitted to the Secretary of State for the 
Colonies. As it contained provisions in excess of the power con- 
ferred by 13 and 14 Vic. c, 59 s. 32, the Bill could not receive the 
Royal assent. It was decided by the Imperial Government to strike 
out the clauses relating to the reservation and disallowance of Bills. 
In that amended shape it was made a schedule to a Bill introduced 
into the Imperial Parliament, entituled "A Bill to enable Her 
Majesty to assent to a Bill, as amended, by the legislature of New 
South Wales to confer a Constitution on New South Wales and to 
grant a civil list to Her Majesty.^' Section 2 of this Bill conferred 
on the Parliament of New South Wales the entire management and 
control of the waste lands of the Crown; section 3 preserved the 
provisions of former Acts respecting the allowance and disallowance 
of Bills ; section 4 preserved to the Parliament of New South Wales 
the power to make laws amending the Constitution, subject to the 
provisions contained therein; section 5 declared that the whole water- 
course of the river Murray from its source to the eastern boundary of 
South Australia should be deemed to be within the territory of New 
South Wales. In this shape the Bill was passed by the Imperial 
Parliament and received the Royal assent on 16th July, 1855. Its 
number is 18 and 19 Vic. c. 54, and it is now known as the New 
South Wales Constitution Statute, whilst the Act contained in the 
Schedule is known as the New South Wales Constitution Act. 

The Act conferring a Constitution on Victoria was assented to on 
the same day. These Acts were transmitted to the respective colonies, 
accompanied by explanatory despatches from the Secretary of State, 
Lord John Russell, in which the Governors were instructed as to the 
introduction of Responsible Government. 

Responsible Government. — "That great change in our colonial 
system which is known as the introduction of Responsible Govern- 
ment was," wrote Dr. Hearn, " effected solely by a despatch from a 
Secretary of State. This despatch did not even affect the legal tenure 
of colonial offices ; it merely described the circumstances in which the 
Crown would exercise its right of displacing at its pleasure certain 
classes of its servants. In the body of the Act, for example, which 
conferred upon Victoria its present form of government " (and these 
remarks apply equally to the New South Wales Act) ''the words 
Responsible Minister, or any equivalent terms, never once occur. 
Were it not for a marginal note, which forms no portion of the Act, 
not even a hint would be given by this statute of the important 



COLONIAL GOVERNMENT IN AUSTRALIA. 45 



changes Avhicli it was intended to effect." — Hearn's Government of 
England, pp. 8-9. 

Sir Richard G. Baker, President of the Legislative Council of 
South Australia, has expressed a similar opinion as to the method and 
circumstances in which Responsible Government was introduced into 
the colonies. " It is evident," he writes, " that the enormous power 
exercised by the Ministry rests on a very small legal basis, and it is 
curious to note that this system of Responsible Ministry, that is, of 
advisers, theoretically responsible to the Governor and constitutionally 
and practically responsible to the Parliament, was introduced into 
Australia simply in pursuance of a few words contained in a despatch 
of Sir R. Peel to one of our colonial Governors, and that it was 
originally introduced into Canada simply in pursuance of a conversa- 
tion between Sir Francis Head and a Secretary of State for the 
Colonies." — Notes on the Constitution of South Australia, " Adelaide 
and Vicinity," p. 27. 

The theory maintained by Dr. Heam, and by Sir Richard Baker, 
has not been concurred in by all the leading constitutional authorities. 
Mr. George Higinbotham (afterwards Chief Justice of Victoria) held 
the view, duringf his official career as Attornev-General of Victoria, 
that the existence of Responsible Government in a constitutional 
colony was dependent, not upon instructions to the Governor, but on 
the statute law under which the Constitution was established in such 
colony. These principles he afterwards affirmed judicially in the 
great constitutional case of Ah Toy r. Musgrove (1888), 14 V.L.R. p. 
349. In his opinion the Imperial statute law was the sole source of the 
public rights of every dependency of the British Crown possessing 
powers of internal self-government. Those rights could not be legally 
derived from the commission and instructions issued by the Crown to 
successive Governors of a colony. The commission and instructions 
were issued to the Governor by Her Majesty on the advice of her 
Imperial Ministers, and the powers and commands contained in those 
instruments were as revocable as they were grantable by the 
Sovereign. — Id. p. 379. It was in the Constitution Acts and other 
Imperial legislation applicable to the colonies that the system of 
Executive administration, generally described as Responsible Govern- 
ment, could alone be found. The increased powers of legislation 
conveyed to New South Wales, Victoria, and the other colonies, in 
and by their Constitution Acts, necessitated the far greater change 
introduced by the same Acts into the system of government by the 
application to the enlarged functions of government of the new prin- 
ciple of Ministerial responsibility. Mr. Higinbotham did not acquiesce 
in the contention of Dr. Hearn and other learned constitutional jurists, 
that Responsible Government could not be found in the Constitution 
Acts of such colonies as New South "Wales and Victoria. On the 
contrary, he was able to find in those constitutional charters abundant 
evidences of the intention of their framers, ratified by the Imperial 
Parliament, to establish such a plan of Executive Government. 

It was true thnt in those Constitutions the Cabinet was not 
mentioned; that the expression "Responsible Ministers" occurred 
only in the marginal note — which formed no part of the law — annexed 



46 HISTORICAL INTRODUCTION. 

to one of the sections of the Victorian Constitution (sec. 18) ; that 
mention was made of the Executive Council^ but nothing' Avas said 
about its legal constitution or personal composition; that the nature 
of Responsible Government was nowhere described ; that the extent 
of its application was nowhere expressly declared. But the Chief 
Justice considered that in sec. 37 of the Constitution Act of Victoria, 
which was drawn on exactly the same lines as sec. 37 of the Constitu- 
tion Act of New South Wales, there were provisions which assumed, 
if they did not originate, the operation of some plan of Ministerial 
Government. Both those sections declared that ''The appointment 
of all public oflfices hereafter to become vacant or to be created, 
whether such offices be salaried or not, shall be vested in the Governor 
with the advice of the Executive Council, with the exception of the 
appointments of the officers liable to retire from office on political 
grounds, as hereinafter mentioned, which appointments shall be 
vested in the Governor alone." The Constitution Acts of South 
Australia, Queensland, and Western Australia contained substantially 
similar sections. But sec. 18 of the Constitution Act of Victoria, and 
sec. 32 of the Constitution Act of South Australia — amended and 
enlarged by subsequent legislation — contained provisions which caused 
those Constitutions to go much further in the direction of express 
recognition and actual introduction than anything in the Constitution 
of New South Wales. Those sections enacted that a certain number 
of the officers of the Governments in those colonies, for the time 
being, should be members of the Parliaments created by the new Con- 
stitutions. The requirement of the presence in Parliament of a certain 
number of Ministers in charge of public departments has been gener- 
ally looked upon as one of the leading features of Responsible Govern- 
ment ; their presence in the parliamentary arena brings them into 
personal contact and direct communication with the representatives of 
the people, who may there interrogate them on questions of public 
interest and express their approval or disapproval of the manner in 
which those Ministers conduct the government of the country. 

" These provisions most plainly, in my opinion, though indirectly, 
give adequate expression to an intention of the Legislative Council 
that the principle of Responsible Government should be established 
by law. In contrast with this power of appointment of responsible 
officers which is vested ' in the Governor alone,' all other powers and 
functions are vested either in the Governor, or in the Governor and 
Executive Council (sees. 49, 51, and 53), or in the Governor with the 
advice of the Executive Council (sec. 37). The provisions in these 
last-mentioned sections appear to apply to cases where, in addition to 
the advice, assistance, and approval of the responsible Ministers, the 
nature of the power to be exercised seems to require that that exercise 
should be formally recorded or publicly announced. There is no 
indication in the Act that it was designed to create a single power or 
function in the Governor, except the power of appointing his Ministers, 
as a personal power to be exercised on his own individual judgment 
or discretion, or otherwise than in accordance with the advice of those 
whom he selects to advise and carry into act and operation the consti- 
tutional exercise of the powers given to him by the statute law as the 



COLONIAL GOVERNMENT IN AUSTRALIA. 47 

appointee and representative of the Crown. The Imperial Government 
has never, I believe, even in the boldest of its attempts to interfere 
illegally with the Victorian Constitution, suggested that the Governor 
ought to exercise any of his statutory powers without receiving the 
advice of Her Majesty's Government for Victoria. It has only 
asserted for itself the right to disregard that advice, and to order the 
Governor, as its officer, to act in defiance of it. I think that the rule 
of responsibility applies to every one (if to any) of the powers of the 
Crown created by Statute in the Crown's representative, the Governor, 
and that none of them can be lawfully exercised except through and 
by the advice, or with the knowledge and approval, of the responsible 
Ministers appointed by the Governor. What are those powers ? 
Some of them are merely formal, and their exercise and the approval 
of Ministers would ordinarily be a matter of course (see sees. 8 and 
32). Others are of a very different nature. Thus the appoint- 
ment to public offices (sec. 37), including the general control of the 
Public Service, is a power not only of the highest importance, but of 
a very large scope. Again, the power of convening and proroguing 
Parliament and of dissolving the Legislative Assembly (sec. 28) is one 
of large significance, and the exercise of it, undisturbed by any 
external influence, by the Ministers whom the Governor is pleased to 
retain in the service of the Crown as his advisers, is a matter of 
moment to the whole community as well as to political parties and the 
movements of opinion in Parliament. Sections 57 and 58 indicate, in 
my opinion, more clearly than all the others the intended scope and 
the legal and actual extent of the principle of Responsible Govern- 
ment established by the Constitution Act. It is from the powers of 
the Crown express and necessarily to be implied from these sections 
as well as from the powers of control over the Public Service, granted 
by sec. 37, that all the ordinary general functions of Responsible 
Government spring. From these powers the legal existence and the 
rightful exercise of those functions may, and, in my opinion, must be 
inferred. It has been seen that the Legislature obtained by the Act 
not only the right to dispose by legislation of the waste lands of the 
Crown, but also the control, for the use and benefit of the people of 
Victoria, by means of appropriations for specific purposes, of all the 
consolidated revenues derived from that and all other sources. This 
power covers, directly and indirectly, the whole field of Parliamentary 
action outside the field of general legislation." — Per Higinbotham, 
C.J., Ah Toy V. Musgrove, 14 V.L.R., 392-4. 

On 22nd May, 1856, the first Parliament of Xew South Wales 
under the new Constitution was opened by Sir William T. Denison. 
The first Responsible Ministry was composed of Mr. (afterwards Sir) 
Stuart Alexander Donaldson, Colonial Secretary and Premier; Mr. 
Thomas Holt, Treasurer; Mr. (afterwards Sir) William Montagu 
Manning, Attorney-General ; Mr. J. B. Darvall, Solicitor-General ; 
Mr. George R. Nichols, Auditor-General; and Mr. W. C. Mayne, 
Representative of the Government in the Legislative Council. 

Amexdment op the New Coxstitctiok. — The power conferred on 
the Parliament of New South Wales to alter the Constitution has not 
been very extensively exercised. The first amendment was made in 



48 HISTORICAL INTRODUCTION. 



1857, when a Bill was passed to repeal so much of the Constitution 
Act as required the concurrence of unusual majorities in the passing 
of Bills to alter the constitution of the Council or the number and 
apportionment of members of the Assembly. By section 15 of the 
Constitution the Legislature was authorized to alter the electoral 
districts and the electoral divisions of the Assembly, and to alter the 
apportionment of Representatives, provided that such alterations were 
passed by a majority of the Council and by two-thirds of the members 
of the Assembly. By section 36 the legislature was authorized to 
alter the law concerning the Legislative Council and to provide for 
the nomination or election of another Council, subject to the condition 
that such alteration was passed with the concurrence of two-thirds of 
the members of the Council and of the Assembly respectively. By 
the Act 20 Vic. No. 10, reserved on 20th January, 1857, proclaimed 
on 19th October, 1857, these unusual majorities were abolished, so 
that it is now competent for the Parliament of New South Wales to 
pass Bills to amend the Constitution in the same manner and by the 
same majorities of members as other laws for the good government of 
the colony, pi-ovided that such Bills must be reserved for the signifi- 
cation of the Queen's pleasure. By the Act 22 Vic. No. 20 (N.S.W.) 
section 20 of the Constitution Act, disqualifying ministers of religion 
from becoming members of Parliament — an inhibition notoriously 
directed against the late Dr. Lang — was repealed. By the same Act 
the number of members of the Assembly was increased and the 
qualification of the electors was lowered. By the Act 37 Vic. No. 7 
(N.S.W.) the clause in the Constitution Act providing that the 
Assembly should continue for five years from the date of the return 
of the writs, subject to be sooner dissolved by the Governor, was 
repealed, and it was enacted that every future Assembly of New 
South Wales should continue for three years from the day of the 
return of the writs subject to be sooner dissolved by the Governor. 

Reforms. — The structure and composition of the Legislative 
Council of New South Wales, as established by the Constitution Act, 
have not since been altered ; except that by the Constitution Act 
Amendment Act of 1890 (54 Vic. No. 1) the quorum was reduced from 
one-third to one-fourth of the members. There is no legal limit to the 
number of its members, but its average numerical strength is about 65. 
The qualifications of members are : male; 21 years; natural born or 
naturalized subject. The tenure of ofiice is for life, or until resigna- 
tion, or forfeiture by absence or other disability. There are now 125 
members of the Legislative Assembly, each representing a single 
electorate. The suffrage is manhood ; every natural born or naturalized 
male subject, resident twelve months in the colony and three months 
in an electoral district, being entitled to an elector's right for the 
district. No elector can have more than one vote. Every holder of 
an elector's right is qualified as a candidate. Members of the 
Assembly receive £300 a year each ; members of the Council are 
unpaid. 

Enlarged Leqislative Powers. — Under the provisions of Imperial 
Acts applicable to the colonies the legislative powers and functions of 
the Parliament of New South Wales, like those of the Parliaments of 



COLONIAL GOVERNMENT IN AUSTRALIA. 49 

the other Australian colonies^ are much larger than they appear on 
the face of the constitutional instruments. The Acts so applicable 
may be considered as contributory charters of self-government in 
Australia ; among tliem may be mentioned the following : — 

1. Enabling the legislature of any British possession to make 

provision for securing to British authors protection within 
such possession, and in such case authorizing Her Majesty 
to declare by Order in Council that so long as such pro- 
vision continues in force the prohibitions contained in the 
Copyright Act, 5 and 6 Vic. c. 45, are suspended as regards 
such colonv or possession. — Colonial Copvright Act, 1847j 
10 and 11 Vic. c. 95. 

2. Enabling the legislature of any British possession to pass 

laws for the punishment of offences relating to the 
coinage. — Coinage Offences (Colonies) Act, 1851 ; 16 and 
17 Vic. c. 48, s. 4. 

3. Enabling the legislature of any British possession to apply 

or adapt to any British ship, registered in such possession, 
any of the provisions of the Merchant Shipping Acts 
" which do not otherwise so apply," and providing that 
such law shall have effect throughout Her Majesty's 
dominions. — 17 and 18 Vic. c. 104, s, 288; re-enacted in 
the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, 
s. 264. 

4. Authorizing the legislature of any British possession to 

repeal any provision of the Merchant Shipping Acts 
(other than parts thereof which relate to emigrant ships) 
relating to ships registered in that possession. — 17 and 18 
Vic. c. 104, s. 547 ; re-enacted in the Merchant Shipping 
Act, 1894, 57 and 58 Vic. c. 60, s. 735. 

5. Enabling the legislature of any British possession to make 

laws for the trial and punishment of offences committed 
within such possession, but resulting in death on the sea, 
or beyond the limits of such possession. — Admiralty 
Offences (Colonial) Act, 23 and 24 Vic. c. 122 (28th 
August, 1860). 

6. Empowering the legislative authority of any colony, with 

the approval of Her Majesty in Council, to make laws for 
providing and maintaining vessels of war, and for raising 
and maintaining seamen for the naval defence of the 
colony, and for enforcing order and discipline among 
the men and officers whilst ashoi-e or afloat within the 
limits of the colony. — Colonial Naval Defence Act, 28 
and 29 Vic. c. 14, s. 3. (7th April, 1865). 

7. Repealing the old common law doctrine that colonial legis- 

latures could not pass any law repugnant to the law of 
England, and enacting that no colonial law shall be void 
or inoperative on the ground of repugnancy to the law 
of England, unless the same be repugnant to some Act of 
the Imperial Parliament applicable to the colonies. — 



50 HISTORICAL INTRODUCTION. 

Colonial Laws Validity Act, 28 and 29 Vic. c. 63 (29th 
Jure, 1865). 

8. Declaring the validity, throughout the empire, of laws made 

by the legislature of any British possession establishing 
the legality of marriages contracted in any such posses- 
sion, provided that at the time of such marriage both of 
the parties thereto were, according to the law of England, 
competent to contract the same. — Colonial Marriages Act, 
28 and 29 Vic. c. 64 (29th June, 1865). 

9. Removing doubts as to the necessity of reserving for the 

Queen's assent Bills passed by Australian legislatures, 
altering or repealing laws for the imposition of duties of 
customs.— 29 and 30 Vic. c. 74 (6th August, 1866). 

10. Enabling the legislature of any British possession to provide 

for the examination of, and to grant certificates of compe- 
tency to, persons intending to act as master, mate or 
engineer on board British ships. — 30 Vic. c. 11, s. 38; 
re-enacted in the Merchant Shipping Act, 1894, 57 and 58 
Vic. c. 60, s. 102. 

11. Authorizing the legislature of any British possession to 

regulate the coasting trade of that possession, subject to 
the condition that all British ships shall be treated in 
exactly the same manner as ships of the possession, and 
subject to Her Majesty's treaty obligations, with respect 
to ships of foreign states. — 32 and 33 Vic. c. 11, s. 4; re- 
enacted in the Merchant Shipping Act, 1894, 57 and 58 
Vic. c. 60, s. 736. 

12. Confirming the Acts of legislatures of British possessions in 

imparting the privileges of naturalization to aliens within 
the limits of such possessions. — Naturalization Act, 33 and 
34 Vic. c. 14, s. 16 (12th May, 1870). 

13. Authorizing the legislature of any British possession to 

make provision for carrying into effect the Imperial law 
relating to surrender of fugitive criminals, from foreign 
countries, suspected to be in such British possession. — 
Extradition Act, 33 and 34 Vic. c. 52, s. 18 (9th August, 
1870). 

14. Enabling the Parliaments of the Australian colonies to pass 

laws imposing preferential and differential duties on goods, 
wares and merchandise, the produce of the Australian 
colonies. — Australian Colonies Duties Act, 36 and 37 Vic. 
c. 22 (26th May, 1873). 

15. Enacting that where the legislature of any British possession 

provides for the survey of and grants certificates for 
passenger steamers to the satisfaction of the Board of 
Trade, such certificates are to be .in force as if granted 
under the Imperial Act. — 39 and 40 Vic. c. 80, s. 17; re- 
enacted in the Merchant Shipping Act, 1894, 57 and 58 
Vic. c. 60, s. 280. 

16. Enacting that where any force of volunteers, or of militia, 

or any other force, is raised in a colony, any law of the 



COLOXTAL GOVERNMENT IN AUSTRALIA. 51 

colony may extend to the officers, non-commissioned 
officers, and men belonging to such force, whether within 
or without the limits of the colony ; and that where any 
such force is serving with Her Majesty's regular forces, 
then so far as the law of the colony has not provided for 
the government and discipline of such force, the Imperial 
law shall apply. — Armv Act, 1881 ; 44 and 45 Vic. c. 58, 
s. 177. 

17. Authorizing the legislature in any British possession to 

constitute courts to make enquiries into charges of incom- 
petency or misconduct on the part of masters, mates or 
engineers of ships, or as to shipwrecks or other casualties 
affecting ships, in cases occurring within or outside the 
limits of such possessions. — 45 and 46 Vic. c. 76; re-enacted 
in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60, 
s. 478. 

18. Enacting that where the legislature of any British possession 

provides for the fixing and certifying of load lines on 
British ships registered therein, and such provision is 
satisfactory to Her Majesty, certificates given thereunder 
shall be as effective as if given under the Imperial Act. — 
53 Vic. c. 9, s. 3; re-enacted in the Merchant Shipping 
Act, 1894, 57 and 58 Vic. c. 60, s. 444. 



(2) VICTORIA. 



FoDXDATiox. — On 5th January, 1802, Lieutenant Murray, in com- 
mand of the Lady Nelson, whilst exploring the great indentation in 
the southern coast reported by Lieutenant Grant, discovered the 
heads leading into an expanse of inland water, to which he gave the 
name of Port King, in honour of Governor King, but which the 
Governor afterwards altered to Port Phillip, as a compliment to his 
predecessor, the founder of the Sydney settlement. On 9th March, 
" the united colours of Great Britain and Ireland " were hoisted on 
the ship and on the shores of the port, a volley was fired, and the 
place was taken possession of in the name of King George III. On 
20th January, 1803, Mr. Charles Grimes, Surveyor-General of New 
South Wales, entered the port in the Cumherland, explored the coast 
line, and ascended the Yarra as far as Dight's Falls (Studley Park). 
During the same year Lieutenant-Colonel David Collins was sent from 
England to Port Phillip in charge of an expedition, consisting in all 
of 400 souls, with instructions to establish a penal settlement on the 
shores of the port. The first ship of the expedition, the Ocean, arrived 
on 7th October, and the second, the Calcutta, on 11th October. 
Collins was not satisfied with the place, and on 27th January, 1804, 
with the consent of the Sydney Government, he abandoned the 
attempt to form a settlement at Port Phillip, and removed his charges 
to Sullivan's Cove, on the Derwent, Tasmania. 



52 HISTORICAL INTRODUCTION. 



The Port Phillip District was first reached overland from Sydney 
by Hume and Hovell, in 1824. In November, 1834, Messrs. Edward 
and Francis Henty established a pastoral station at Portland. They 
are considered to have been the pioneer settlers of the southern part 
of the continent. In 1835, an association was formed in Van Diemen's 
Land to colonize Port Phillip. On 31st May, 1835, John Batman 
sailed up the Yarra. In the same year John Pascoe Fawkner followed. 
A settlement was formed on the banks of the Yarra, On 29th Sep- 
tember, 1837, Captain William Lonsdale arrived at Port Phillip, 
being appointed to act as Resident Magistrate ; with him was Captain 
Hobson, after whom Hobson's Bay was named. Captain Lonsdale 
selected the site on which was built a town that afterwards grew into the 
city of Melbourne. On 1st October, 1839, Mr. Charles Joseph La Trobe 
became the head of the Port Phillip community under the title of 
Superintendent, a post which he occupied for fifteen years ; Captain 
Lonsdale acted as secretary to the local Government. 

In 1840, the territory of New South Wales was, for all purposes 
connected with the disposal of Crown lands, divided into three dis- 
tricts, known respectively as the North District, the Middle or Sydney 
District, and the Southern or Port Phillip District. The first of these 
Districts practically comprised all the lands north of latitude 32°, but 
it was expressly noted that its northern limits were not yet fixed. 
The second comprised nineteen counties, bounded on the north by the 
southern boundary of the first District and on the south by the 
southern boundaries of the counties of St. Vincent and Murray, " and 
thence by the rivers Murrumbidgee and Murray to the eastern 
boundary of the Province of South Australia." The third, or Port 
Phillip District, included all the lands to the south of the southern 
boundary of the Sydney District. — Jenks' Gov. of Vict., p. 40. 

By the Act 5 and 6 Vic. c. 76 (30th July, 1842) New South 
Wales was granted a Legislative Council consisting of 30 members, 
12 of whom were to be appointed by Her Majesty, and 18 to be elected 
by the -qualified inhabitants of the colony, the old Council was 
authorized to divide the colony into electoral districts for the return 
of elective members, but the Imperial Act specially provided that the 
District of Port Phillip, the town of Sydney, and the town of Mel- 
bourne should be electoral districts ; that the district of Port Phillip 
should return at least five members, the town of Sydney two members, 
and the town of Melbourne one member, and that for the purpose of 
the Act, the northern and north-eastern boundary of the Port Phillip 
District should be a " straight line drawn from Cape Howe to the 
nearest source of the river Murray, and thence the course of that 
river to the eastern boundary of the Province of South Australia." 
It was by this Act that the colony of Victoria, afterwards to be 
created, lost the Murrumbidgee as its northern boundary. 

Separation.— By the Act 13 and 14 Vic. c. 59 (5th August, 1850), 
intituled " An Act for the better Government of Her Majesty's Aus- 
tralian colonies," it was provided '' that after such provisions as here- 
inafter mentioned shall have been made by the Governor and Council 
of New South Wales, and upon the issuing of the writs for the first 
election in pursuance thereof, as hereinafter mentioned, the territories 



COLONIAL GOVERN^MENT IN AUSTRALIA. 53 

now comprised within the said District of Port Phillip, incltiding- the 
town of Melbourne, and bounded on the north and north-east by a 
straight line drawn from Cape Howe to the nearest source of the 
river Murray, and thence by the course of that river to the eastern 
boundary of the colony of South Australia, shall be separated from 
the colony of New South Wales, and shall cease to return members to 
the Legislative Council of such colony, and shall be erected into and 
thenceforth form a separate colony, to be known and designated as 
the colony of Victoria." The Legislative Council of New South 
Wales was empowered to determine the number of members of which 
the Legislative Council of Victoria should consist. It was also 
authorized to pass an Electoral Act fixing the electoral districts for 
which the elective members should be returned. 

The powers and functions of the Victorian Legislative Council 
were, by this Constitutional Act, similar to those of the re-organized 
Legislative Council of New South Wales and the newly constructed 
Councils of Van Diemen's Land and South Australia, viz., (1) to make 
laws for the peace, order, and good government of the colony; (2) to 
impose taxation, including the imposition of customs duties; (3) to 
appropriate to the public service the whole of the public revenue 
arising from taxes, duties, rates, and imposts. Her Majesty was 
authorized by letters patent to appoint a Court of Judicature to be 
styled '' the Supreme Court of the Colony of Victoria." The restric- 
tions on the powers and functions of the Legislative Council of Vic- 
toria were similar to those of the Councils of New South Wales, Van 
Diemen's Land, and South Australia, viz., (1) that no such law should 
be repugnant to the law of England; (2) that no such law should 
interfere with the sale and appropriation of the waste lands of the 
Crown within the colony ; (3) that no customs duties of a differential 
character should be imposed ; (4) that it should not be lawful for the 
Council to pass any Bill appropriating to the public service any sura 
of money for any purpose unless the Governor should have previously 
recommended that provision for such appropriation be made. 

The qualitications of electors and of elective members of the pro- 
posed Legislative Council of Victoria were to be the same as those of 
the electors and elective members of the Legislative Council of New 
South Wales, under the Act 5 and 6 Vic. c. 76, as amended by 13 and 
14 Vic. c. 59. 

This Act was proclaimed on 11th January, 1851. The old Legis- 
lative Council of New South Wales met on 28th March for the 
purpose of making electoral and judicial arrangements required to 
bring the new Act into force in Victoria. Two Acts were passed 
specially concerning Victoria. The first was 14 Vic. No. 45 (N.S.W.), 
which provided that "all justices of the peace, and other oflicials 
holding office or commonly resident within the Port Phillip District at 
the passing of the Act, shall continue to act as though the Separation 
Statute had not been passed, until removed or re-appointed by the 
Gi-overnment of Victoria." The other Act was 14 Vic. No. 47 
(N.S.W.), which provided that '"'the Legislative Council of Victoria 
shall consist of 30 members, 10 nominee and 20 elective." 

These arrangements having been made, the old Legislative 



54 HISTORICAL INTRODUCTION. 



Council of New South Wales was dissolved and re-elected on the 
lower franchise. On 1st July, 1851, the writs for the election of 20 
elective members of the Legislative Council of Victoria were issued. 
On 15th July Mr. La Trobe announced his appointment as Lieutenant- 
Governor of the colony. In this manner the colony of Victoria was 
called into existence and received the first pulsation of autonomous 
political life. 

Political Peogress. — The Act of 1850, by the liberality of its 
provisions in creating so many new Australian Constitutions, as well 
as giving scope and room for the development of the best energies of 
the young Commonwealth, was a recognition, on the part of the 
Imperial Government and Parliament, of the success of the experi- 
mental legislation in British North America in 1840, and in the 
senior settlement of Australia in 1842. In one particular the Act of 
1850 contained a very large and important grant of power to the 
newly-created legislatures. By section 32, it was lawful for the 
Governors and Legislative Councils of New South Wales, Victoria, 
Van Diemen's Land, South Australia, and Western Australia respec- 
tively to amend the provisions or laws for the time being in force, 
under the Act or otherwise, concerning the election of elective 
members of such Legislative Councils respectively, or the qualification 
of electors and elective members of the same ; or to establish in the 
said colonies respectively, instead of the Legislative Council, a 
Council and a House of Representatives, or other separate Legislative 
Houses. The only proviso to this power was that such bills should 
be reserved for the signification of Her Majesty's pleasure. It was 
under this section that a few years afterwards the present Constitu- 
tion Act of Victoria was drawn up and sent to the Imperial Govern- 
ment for ratification by the British Parliament. This was, indeed, 
an important concession. It was the first grant of power to the 
Australian colonists to alter the form and structure of their Constitu- 
tions, subject to Imperial control. Thus were continued the founda- 
tions of Parliamentary Institutions in Australia, commenced by the 
Act of 1842. They were truly miniature legislatures to start with, 
but it was certain that their progress and development would be 
guided by the natural laws of growth and evolution; and time has 
demonstrated the elasticity and vitality of the transplanted political 
system of the mother country. 

The new Legislative Council of Victoria, partly nominated and 
partly elected, was convened for the despatch of business on 11th 
November, 1851. The official members were : — Mr. W. Lonsdale, 
Colonial Secretary; Mr. (afterwards Sir) W. F. Stawell, Attorney- 
General ; Mr. (afterwards Sir) Redmond Barry, Solicitor-General ; 
Mr. C. H. Ebden, Auditor-General; and Mr. R. W. Pohlman, Chair- 
man of the Court of Requests. Mr. J. F. Palmer was elected Speaker. 
In his inaugural speech to the Council the Lieutenant-Governor 
said : — " In now formally opening this first session, I would offer to 
you, and through you, to the inhabitants of the colony at large, my 
most hearty congratulations upon the event which, after much delay, 
has at length crowned your wishes. Under the provisions of the 
recent Imperial Act, and Her Majesty's favour, you meet here to-day 



COLONIAL GO\rERNMENT IN AUSTRALIA. 55 

as the representatives of the people of an independent colony of tlie 
British Empire, with power to watch over the general interests and 
to control your own affairs, which has hitherto been, from circum- 
stances, in a great measure denied to you ; and it is my earnest 
prayer to God that you may be endowed with wisdom and prudence, 
which are requisite for the due discharge of the important duties 
entrusted to you/' 

The Xew Constitution'. — The next important stage in the 
constitutional history of Australia was that which was consummated 
by the attainment of complete local legislative independence coupled 
with complete local Executive authority. The Legislative Councils, 
partly nominated and partly elected, together with the system of 
personal government, were doomed to be swept away, and to give 
place to a more perfect type of legislature, and to a responsible 
administration according to the British model. The discovery of 
gold, which was announced to the world a few months after the 
separation of Victoria from New South Wales, soon began to 
attract a large and ever-increasing population to the shores of 
Australia, and new and exciting events followed one another in 
rapid succession. The legislature of New South Wales took the 
lead in the movement for an extension of Constitutional power, 
and the Home Government promptly and willingly agreed to grant 
the reform of the Constitution asked for. 

Reference has been made to, and an extract given from. Sir -John 
Pakington's despatch to the Governor of New South Wales promising 
to give effect to the wishes of the Legislative Council of New South 
Wales, that a Constitution resembling that of Canada, based on a bi- 
cameral legislature, should be adopted, and suggesting that the 
Legislative Council should proceed to frame one. A similar despatch, 
dated 18th January, 1853, offering the same concessions, was received 
by the Lieutenant-Governor of Victoria. The Victorian Legislative 
Council appointed a select committee of twelve members, chosen by 
ballot, to consider and report on the best form of government for the 
colony. The committee subsequently brought up a report accompanied 
by a Draft Bill. On 25th January, 1854, the Bill was read a second 
time, committed and reported. On 24th March it was passed, and on 
the 28th it was reserved for the Queen's assent. 

The Constitution, so sent to England, proposed to create a bi- 
cameral legislature, consisting of a Legislative Council, to be com- 
posed of 30 members, elected by qualified voters, and a Legislative 
Assembly, consisting of double that number, elected on a more liberal 
franchise. The Queen, with the advice and consent of this legislature, 
was authorized " to make laws in and for Victoria in all cases whatso- 
ever ;" to impose and levy duties of Customs; to appropriate public 
revenue for specific purposes. All Bills for appropriating any part 
of the revenue or imposing any duty, rate, tax, rent, return, or impost, 
were required to originate in the Assembly and could be passed or 
rejected but not altered by the Council. The Assembly could not 
originate any vote, resolution, or Bill for the appropriation of the 
consolidated revenue for any purpose which should not have been first 
recommended by a message of the Governor to the Assembly. The 



56 HISTORICAL INTRODUCTION. 

appointment to public offices was to be vested in the Governor with 
the advice of the Executive Council, excepting in the case of officers 
liable to retire on political grounds, whose appointment was vested "in 
the Governor alone." Sec. 37. See p. 46, supra. The Bill also con- 
tained clauses similar to those of the New South Wales Bill, relating to 
the assent of the Governor to Bills and Her Majesty^s power to disallow 
the same ; relating to boundaries of the Australian colonies ; and provid- 
'ng that it should not come into force until the control of the sale and 
appropi'iation of the waste lands of the Crown within the colony 
thould be vested in the legislature to be created. The legislature was 
authorized to amend the Constitution, subject to the condition that 
Bills altering the Constitution of the two Houses should be passed by 
an absolute majority in each House and should be reserved for the 
Queen's assent. 

The Constitution, so drawn, granted powers to the proposed bi- 
cameral legislature in excess of the authority conferred by 13 and 14 
Vic. c. 59. In this respect the Select Committee of the Victorian Council 
were influenced by the same political considerations as the Select 
Committee of the New South Wales Council. They wished to secure 
under the new Constitution " other and additional powers and 
functions " beyond those vested in the old Council. In so doing they 
ran the same risk of having the Royal assent withheld. In fact it 
was known that, owing to the excess of powers proposed to be granted 
by the Constitution, the Royal assent could not be legally given, and 
that fresh Imperial legislation would be required in order to legalize 
the Constitution. The powers and functions granted by the Bill 
were : — 

1. To make laws in and for Victoria in all cases whatsoever. 

2. To impose taxation, including duties of customs. 

3. To appropriate revenue. 

4. To legislate concei*ning the waste lands of the Crown. 

5. To amend the Constitution of the Council and Assembly, 

subject to certain conditions. 
Accompanying these grants were several restrictions and other 
provisions relating to electoral matters similar to those embodied in 
the New South Wales Bill. As the Bill contained matters in excess 
of the powers conferred by the Enabling Act, the law officers of the 
Crown advised that it was not competent for Her Majesty to assent to 
the Bill without the authority of Parliament. In order to enable that 
assent to be given, a Bill was brought into Parliament, to which the 
proposed Constitution was added as Schedule A ; amended, however, 
by the omission of clauses relating to the assent of the Governor to 
Bills, Her Majesty's power to disallow Bills, and respecting the boun- 
daries of the Australian colonies. It was intituled " A Bill to enable 
Her Majesty to assent to a Bill, as amended, by the legislature of 
Victoria to establish a Constitution in and for Victoria." Section 1 
enabled Her Majesty to assent to the Bill. Section 2 repealed 
Imperial Acts inconsistent with the Constitution, and vested the entire 
management and control of the waste lands of the Crown in the new 
legislature. The provisions of former Acts relating to the disallow- 
ance of Bills were preserved. The new legislature was authorized to 



COLONIAL GOVERNMENT IN AUSTRALIA. 57 

repeal or alter all or any of the provisions of the reserved Bill snbject 
to the conditions therein prescribed. 

Responsible Goverxment. — The Bill was passed and assented to 
on 16th July, 1855; it is known as the Victorian Constitution Statute; 
whilst the Act contained in the Schedule is known as the A^ictorian 
Constitution Act. The new Constitution was proclaimed on 23rd 
November, 1855. The first Responsible Government was composed 
of Mr. AV. C. Haines, Chief Secretary; Mr. (afterwards Sir) W. F. 
Stawell, Attorney-General ; Mr. (afterwards Sir) C. Siaden, Treasurer; 
Mr. C. Pasley, Commissioner of Public Works; Mr. H. C. E. Childers, 
Commissioner of Trade and Customs; Mr. (afterwards Sir) A. Clarke, 
Surveyor-General ; and Mr. (afterwards Sir) R. Molesworth, Solicitor- 
General; Mr. (afterwards Sir) Wm. H. F. Mitchell (without ofl&ce). 
The Ministers were all returned to seats in the first elections for the 
Legislative Assembly, which took place in the spring of 1856; they 
met the new Parliament as a Cabinet, and resigned on the passing of 
an unfavourable resolution upon the subject of the Estimates, in 
March, 1859. Mr. (afterwards Sir) John O'Shanassy, the mover of 
the resolution, was then, in accordance with Cabinet practice, invited 
to form a Ministry. — Jenks' Gov. of Victoria, p. 215. 

Enlarged Legislative Powers. — The Constitution of Victoria, 
like that of the other Australian colonies, was subsequently enlarged 
and impi'oved by further grants of power, contained in Imperial Acts 
applicable to the colonies, of which a summary has been given, under 
the heading of "Xew South Wales," pp. 49-51, tftipra. 

Reforms. — By the Legislative Council (Reform) Act, 1881 (45 
Vic. No. 702), the number of members of the Council was increased 
from 30 to 41 ; and by the Act 52 Vic. Xo. 995, passed in 1888, the 
number was increased to 48, distributed among the fourteen provinces. 
The term of membership has been reduced from ten years to six years, 
and the qualification of members and electors has been lowered. 
Members of the Council must be of the full age of 30 years, natural 
born or naturalized subjects, and possessed of freehold property in 
Victoria of the annual value of £100. Electors of the Council must 
be adult males, natural born or naturalized subjects, and possessed of 
a qualification either (1) as freeholders or mortgagors in possession of 
land of the annual value of £10, or leaseholders to the annual value 
of £25; or (2) as graduates, members of the learned professions, or mili- 
tary or naval officers. No property qualification is required for mem- 
bership of the Assembly ; members of that House are paid at the rate 
of £300 per annum for their services. The franchise for the Assembly 
is manhood; every natural-born or naturalized male subject of the 
age of 21 years, if resident for 12 months in Victoria and for one 
month in an electoral district, is entitled to be enrolled as a voter for 
that district. Every such person is also entitled to vote in every 
electoral district in which he is seised in fee of lands worth £50, or of 
the annual value of £5, or in which his name is entered on a municipal 
roll as a ratepayer. By the Act 22 Vic. No. 89 (1859), the duration 
of the Assembly was reduced from five years to three years. The 
number of members of the Assembly has been increased from 60 to 95. 

Constitutional Struggles. — Since the adoption of the Victorian 



58 HISTORICAL INTRODUCTION. 

Constitution it has been subjected to some severe strains, consequent 
on disputes between the two Houses respecting their powers in 
matters of taxation and appropriation. During those controversies 
questions of great Constitutional importance were raised and dis- 
cussed. Among these may be mentioned the action of the Assembly 
in tacking the proposed new tariff to the annual Appropriation Bill in 
1865; its rejection by the Council and the consequent deadlock; the 
insertion of the proposed grant to Lady Darling in the Annual Appro- 
priation Bill in 1867; its rejection by the Council and consequent 
deadlock ; the insertion of provision for payment of members in the 
annual Appropriation Bill of 1877 ; its rejection by the Council and the 
consequent deadlock, leading to ^' Black Wednesday '^ dismissals; the 
Victorian delegation to England in October, 1878, and Sir Michael 
Hicks-Beach's despatch of 3rd May, 1879. In that famous despatch 
the Colonial Secretary said : — 

" I observe that the address of the Legislative Assembly of Feb- 
ruary 14th, 1878, dwells almost exclusively on the necessity of 
securing to that House sufficient financial control to enable adequate 
supplies to be provided for the public service, and it is prominently 
ui'ged in Mr. Berry's letter of February 26th, in proof of the necessity 
for finding some solution of the present constitutional difficulty, that 
' scarcely a year passes but it becomes a question whether the supplies 
necessary for the Queen's service will be granted.' But this difficulty 
would not arise if the two Houses of Victoria were guided in this 
matter, as in others, by the practice of the Imperial Parliament, the 
Council following the practice of the House of Lords, and the 
Assembly that of the House of Commons. The Assembly, like the 
House of Commons, would claim and in practice exercise the right of 
granting aids and supplies to the Crown, of limiting the matter, 
manner, measure, and time of such grants, and of so framing the Bills 
of Supply that these rights should be maintained inviolate ; and as it 
would refrain from annexing to a Bill of Aid and Supply any clause 
or clauses of a nature foreign to or different from the matter of such 
a Bill, so the Council would refrain from any steps so injurious to the 
public service as the rejection of an Appropriation Bill." — Todd, Par. 
Gov. Col., 2nd Ed., p. 746. 



(3) TASMANIA. 



Foundation. — This island, which down to the year 1853 was 
known as Van Diemen's Land, was, until its circumnavigation by 
Flinders and Bass in 1798, thought to be connected with the main- 
laud. In 1803, in consequence of the presence of French exploring 
vessels in Australian water.s, an apprehension was felt that the French 
meditated the annexation of unoccupied territory along the Australian 
coast. In order to remove any impression that Van Diemen's Land 
was unclaimed by the British nation, the Sydney Government decided 
to formally take possession of it. Accordingly Governor King despatched 
Lieutenant John Bowen to the Derwent in charge of the Albion and 



COLONIAL GOVERNMENT IN AUSTRALIA. 59 

the Lady Nelson, which conveved a number of soldiers and prisoners 
thither to form the nucleus of a settlement. The pioneering party 
anchored off Risdon Cove on the left bank of the Derwent on 12th 
September, 1803. In 1804, Colonel David Collins abandoned an 
attempt to form a settlement on the shores of Port Phillip, and 
removed with his charges to the Derwent. Not approving of the site 
chosen at Risdon Cove by Bowen, he selected another one on the 
south bank of the Derwent, known as Sullivan's Cove, which in after 
years grew into the city of Hobart, so named after Lord Hobart, the 
Secretary of State for the colonies. In 1804, Collins superseded Bowen 
as commandant of the Derwent settlement. In the same year Colonel 
Patterson, by direction of Governor King, planted a camp at George 
Town on the Tamar, but it was subsequently removed to a better 
situation at York Town, and eventually to the present site of Launces- 
ton. In 1805, it was decided to abandon the prison settlement on 
Norfolk Island, and some of the free colonists were transferred to the 
Derwent, where " New Norfolk " was founded. 

Separation. — By Section 44 of the Act 4 Geo. lY. c. 96 (19th 
July, 1823), intituled ''An Act to provide . . . for the better 
administration of Justice in New South AYales and Yan Diemen^s 
Land," the Crown was empowered to constitute and erect the island 
of Yan Diemen's Land into a separate colony independent of New 
South Wales. On the 13th October, 1823, a charter of Justice was 
issued by the Crown instituting a Supreme Court for Yan Diemen's 
Land. Mr. John Lewis Pedder became the first Chief Justice of the 
colony. The Court was opened for business on 24th May, 1824. 
Pursuant to an Order in Council dated 14th June, 1825, the separation 
and independence of Yan Diemen's Land were proclaimed. The new 
colony then received a Lieutenant-Governor, an Executive Council, 
and a Legislative Council of its own. The Governor of New South 
Wales was entitled the " Captain-General and Governor-in-Chief " of 
the eastern part of the continent, and the Lieutenant-Governor of 
Yan Diemen's Land exercised all the powers and functions of Governor 
when the Governor of New South Wales was not present on the 
Island. The Executive Council consisted of the Lieutenant-Governor, 
the Chief Justice, the Colonial Secretary, the Colonial Treasurer, and 
the Chief Military Officer. The Legislative Council consisted of seven 
members nominated by His Majesty, its functions, under sec. 24 of 
the Imperial Act, being to make laws and ordinances for the peace, 
welfare and good government of the colony, provided that such laws 
were not repugnant to the law of England. 

By the Act 9 Geo. lY. c. 83 (28th July, 1828), the Crown was 
authorized to re-model and improve the Supreme Courts of New South 
Wales and Yan Diemen's Land. The remaining sections of the Act 
providing for the constitution, appointment, and powers of the Legis- 
lative Councils in and for both colonies, and providing for the intro- 
duction and operation of " all laws and statutes in force within the 
realm of England," were made applicable alike to New South Wales 
and Yan Diemen's Land. See " New South Wales," pp. 37-8, supra. 

The Act 5 and 6 Yic. c. 76 (30th July, 1842), intituled "An Act 
for the Government of New South Wales and Yan Diemen's Land," 



60 HISTORICAL INTRODUCTION. 



created a new Legislative Council for New South Wales^ but it did 
not do so for Van Diemen's Land. The whole of the provisions of 
that Actj with several minor exceptions, were confined to New South 
Wales. 

First Eepresentative Legislature. — For their first instalment of 
the Representative System of Government, the people of the southern 
island had to wait till the passing of that important Act 13 and 14 
Vic. c. 59 (1850), intituled " An Act for the better government of Her 
Majesty's Australian colonies." By section 7 of this Act, it was pro- 
vided that the legislature already existing in Van Diemen's Land, 
under the Act of 1828, might establish within the colony a Legislative 
Council, to consist of not more than 24 members, of whom one- third 
should be nominated by Her Majesty and the remainder elected by 
the inhabitants of the colony. Upon the issue of the writs for the 
election of the new Legislative Council, all prior legislation relating 
to the constitution, appointment and powers of the old Legislative 
Council should be repealed. The Governor of Van Diemen's Land, 
with the advice and consent of the new Legislative Council so estab- 
lished, had authority to make laws for the peace, welfare and good 
government of the colony; to appropriate to the public service the 
whole of the revenue arising within the colony from taxes, duties, 
rates and imposts, and to impose duties of customs. The Council, 
however, could not pass any laws repugnant to the law of England, 
or interfere in any manner with the sale or appropriation of the waste 
lands of the Crown ; nor could it pass any Bill appropriating to the 
public service any sum of money, unless the Governor first recom- 
mended that provision for the appropriation should be made (sec. 14) . 

Section 7 of this Act was an enabling section, valuable in its 
immediate grant of power, but especially valuable as a precedent, 
showing the inclination of the Imperial Government to entrust the 
people of the colonies not only with representative institutions, but 
also with the power of drafting their own constitutional instruments. 
The old Council of 1828 was to establish the new Council and make 
arrangements for dividing the colony into convenient electoral dis- 
tricts. The qualifications of members and of electors for the new 
Council were made similar to those of the members and electors of 
the Legislative Council of New South Wales, under 5 and 6 Vic. c. 76 
as amended by 13 and 14 Vic. c. 59. 

The New Constitution. — During the governorship of Sir William 
Denison, the new Legislative Council of Van Diemen's Land, in 
the exercise of power conferred by 13 and 14 Vic. c. 59 s. 32, 
proceeded to draft a Constitution "for the establishment of the 
Parliament of Van Diemen's Land." It was proposed that the 
new Parliament should consist of a Legislative Council and a House 
of A.ssembly in place of the existing Council. The Council was to 
consist of 15 members, elected by the qualified voters of the colony. 
The House of Assembly was to consist of 30 members elected on a 
more popular franchise than that of the Council. Bills for appropri- 
ating any part of the revenue, or imposing any tax, rate, duty, or 
impost, were required to originate in the Assembly, and the Assembly 
could not originate or pass any vote, resolution, or Bill for the appro- 



COLONIAL GOVERNMENT IN AUSTRALIA. 61 

priation of any part of the public revenue for any purpose which 
should not have been first recommended by the Governor to the House. 

The Bill so drawn did not, on its face, disclose the powers and 
functions of the proposed bi-cameral legislature. For those powers 
and functions reference has to be made to sec. 14 of the Act 13 and 
14 Vic. c. 59, which defines the powers and functions of the Legisla- 
tive Council created under that Act. The bi-cameral legislature 
created to replace that Council could, under sec. 32, exercise only 
" the powers and functions of the Legislative Council for which the 
same may be substituted." Xo law-making power was ever given to 
this bi-cameral legislature, except by reference, and to this day the 
laws of Tasmania are made in pursuance of the powers given by the 
original Enabling Act (13 and 14 Vic. c, 59), and not by the so-called 
Constitution. In fact it is not a Constitution ; it is a graft on, or a 
development of a pre-existing Constitution, viz., the Enabling Act 13 
and 14 Vic. c. 59, sees. 7, 14, and 32. See Notes on the Constitution 
of South Australia by the Hon. Sir R. C. Baker, p. 10. 

Eesponsible Government. — The Bill so drawn, and called " the 
Constitution," was passed by the Legislative Council on 31st March, 
1 854, and was reserved by the Lieutenant-Governor for the significa- 
tion of Her Majesty's pleasure. It was assented to and proclaimed 
on 24th October, 1856, and the first Parliament was opened on 2nd 
December, 1856. Sir Henry Edward Fox Young was appointed the 
first Governor-in-Chief of the colony under the new system of Respon- 
sible Government. The first Responsible ]\Iinistry was composed of 
Mr. William T. X. Champ, Colonial Secretary and Premier ; Mr. T. 
D. Chapman, Colonial Treasurer ; Mr. F. Smith, Attorney-General ; 
Mr. J. W. Rogers, Solicitor-General ; Mr. H. F. Anstey, Secretary for 
Lands and Works ; Mr. W. E. Nairn (without ofiice) . 

Enlarged Legislative Powers. — At about the same time an 
Imperial Act was passed (18 and 19 Vic. c. 56) authorizing the legis- 
lature of each of the Australian colonies to sell, dispose of, and legis- 
late concerning the waste lands of the Crown in the colony. In 1865 
the Colonial Laws Validity Act (28 and 29 Vic. c. 63) removed the 
common law restriction which prevented colonial legislatures from 
passing any law repugnant to the law of England. In 1875 the pro- 
hibition contained in the Act 13 and 14 Vic. c. 59, preventing colonial 
legislatures from passing any law providing for the imposition of 
differential duties, was by the Australian Colonies Duties Act (36 and 
37 Vic. c. 22) abolished, as far as intercolonial duties were concerned. 
Other Imperial Acts applicable to the colonies and enlarging the 
powers of the Parliament of Tasmania, in common with those of the 
other Australian Parliaments, are specified under the heading of 
"New South Wales," pp. 49-51, supra. 

Change of Name. — In the year 1853, on the acquiescence of the 
Imperial Government in the cessation of transportation (finally 
abolished in 1857 by 20 and 21 Vic. c. 3), the name "Tasmania" was 
generally and voluntarily adopted instead of Van Diemen's Land. A 
despatch from the Duke of Newcastle, g^^■^ng the approval of the 
Colonial Office to the change, was published in the Gazette of 3rd 
May of that year. But it was not until an Act, 19 Vic. No. 17, was 



62 HISTORICAL INTRODUCTION. 

passed in December, 1855, that the change was legalized. This is 
intituled " An Act to obviate any doubts which might otherwise arise 
from the change in the name of the colony of Van Diemen's Land to 
Tasmania," and it came into operation on 1st January, 1856. 

Reforms. — There are at present 18 members of the Legislative 
Council of Tasmania. The qualifications of members of the Council 
are : male ; 30 years ; natural born or naturalized subjects ; resident 
three years in the colony. The tenure is six years ; one-sixth of the 
members retiring each year. The qualifications of electors for the 
Council are : male ; 21 years ; natural born or naturalized subjects, 
possessed of freehold estate of the annual value of £15 or leasehold 
estate of the annual value of £30 ; or University graduates, barristers, 
solicitors, or medical pi'actitioners. The qualifications of electors of 
the House of Assembly, of which there are 37 members, are : male ; 
21 years; natural born or naturalized subjects; owners or occupiers 
of property whose names appear on an assessment roll in the district 
for which the vote is claimed or who are in receipt of an income of 
£40 per annum, and who have continuously resided in the district for 
over twelve months. In the city districts of Hobart and Launceston 
a modification of the Hare system of preferential voting is in force. 
Members of both Houses receive £100 per year each. 

In Tasmania the elective Legislative Council has claimed absolute 
equality of power with the Legislative Assembly, except in the 
origination of Money Votes. Not only has it claimed, but it has been 
permitted, to amend Tax Bills, Supply Bills, and even Bills for the 
appropriation of Supplies for the annual services of the Government. 



(4) SOUTH AUSTRALIA. 



First Statutory Authority. — This province originally comprised 
that part of the colony of New South Wales lying between the 
meridians of 132° and 141° of east longitude, bounded on the south 
by the Southern Ocean, and on the north by 26° parallel of south 
latitude. By the Act 24 and 25 Vic. c. 44, a strip of territory, com- 
prising 80,000 square miles, lying between South Australia and 
Western Australia, called "no man's land," was on 10th October, 
1861, added to the province, thus extending its western limits to 
129° east longitude, the former western boundary of New South 
Wales. On 6th July, 1863, the vast tract of country known as the 
Northern Territory, formerly a part of New South Wales, was, by 
letters patent, added to the province. 

In 1829, Mr. Edward Gibbon Wakefield published a pamphlet 
under the title of " A Letter from vSydney," in which he propounded 
a new system of colonization, the essence of which was that the Crown 
should sell the waste lands of Australia at substantial prices for cash 
and apply the proceeds to the promotion of immigration and the 
making of roads. In 1831, a company was formed in England with 
the object of promoting systematic colonization in South Australia on 
the lines laid down by Mr. Wakefield. Objection was taken to giving 



COLONIAL GOVERNMENT IN AUSTRALIA. 63 

legislative power to an irresponsible company, and the scheme fell 
through. Amended proposals were afterwards submitted to the 
Imperial Government, and on 15th August, 1834, the Act 4 and b 
Will. IV. c. 95 was passed, intituled " An Act to empower His 
Majestv to erect South Australia into a British possession or province, 
and to provide for the colonization thereof." This Act enabled His 
Majesty, with the advice of the Privy Council, to erect and establish 
South Australia into a British province and to authorize and empower 
one or more persons resident in the province to make, ordain, and 
establish such laws, institutions, and ordinances, to impose such 
duties and taxes, and to appoint such officers and to constitute such 
courts as might be necessary for the peace, order, and good govern- 
ment of the people of the province. It also empowered the King, 
with the advice of the Privy Council, to appoint colonization com- 
missioners, who were to have the control of the Crown lands. Power was 
given to make orders and regulations for the survey and sale of the 
lands, and to employ portion of the money so derived in conducting 
the immigration of labourers from Great Britain. In the exercise of 
these powers the province was erected and established, and a Governor, 
a Judge, seven Commissioners, and other officials were appointed. 
The Governor, with the concurrence of the Chief Justice, the Colonial 
Secretary, and the Advocate-General, or two of them, was authorized 
to make laws and impose taxes. 

Captain (afterwards Admiral Sir) John K. H. Hindmarsh, R.N., 
was appointed the first Governor; Colonel Light, Surveyor-General; 
Colonel Torrens, Chairman of the Commission in England ; Mr. (after- 
wards Sir) James Hurtle Fisher, Resident Commissioner; Colonel 
Goudge, Colonial Secretary ; Sir J. W. JefFcott, Judge ; Mr. Charles 
Mann, Advocate-General ; Captain Thomas Lipson, Naval Officer ; 
Mr. George Stevenson, Governor's Secretary and Clerk of Council. 

The first ship despatched to South Australia by the Commissioners 
was the Cygnet, which in July, 1836, arrived at Kangaroo Island, 
where there was a small whaling station. Among the passengers 
was Mr. (afterwards Sir) George Strickland Kingston, who was one 
of a party of survey officers. The ships Duke of York and Lady Mary 
Pelham, conveying immigrants, sailed in February, 1836, and arrived 
at Kangaroo Island in August following. Shortly afterwards the 
Rapid arrived with an additional survey party under Colonel Light. 
Xot satisfied with Kangaroo Island, he searched along the main land 
for a site suitable for the settlement. A tract on the Torrens Eiver 
was eventually selected at a suitable spot. It was called Adelaide in 
honour of the Queen of William IV. On 28th December, 1836, 
Governor Hindmarsh arrived in the Bufalo. He issued a proclama- 
tion at Glenelg, announcing the establishment of the Government. 
Thus began colonization in South Australia. 

A Crown Coloxt. — In May, 1841, the settlement being in con- 
siderable financial difficulties, Governor Gawler was recalled, being 
succeeded by Captain (afterwards Sir) George Grey. The British 
Government decided to lend the colony sufficient money to pay its 
debts, to re-model the system of government and to abolish the 
colonization commission. South Australia then became a Crown 



64 HISTORICAL INTRODUCTION. 

colony. In 1842 the Act 5 and 6 Vic. c. 61 was passed, intituled 
" An Act to provide for the better government of South Australia." 
Her Majesty was empowered to constitute a nominated Legislative 
Council consisting of the Governor and seven other persons resident 
therein, with power to make laws for the government of the colony. 

That system of government continued in force until the inaugu- 
ration of a new scheme under the Constitutional Act, 13 and 14 Vic. 
c. 59 (5th August, 1850), already referred to. Section 7 of that Act 
authorized the legislature, then by law established in South Australia, 
to establish a Legislative. Council consisting of not more than 24 
members, of whom one-third were to be appointed by Her Majesty, 
and the remainder were to be elected by the qualified inhabitants. 
Section 14 gave the Governor, with the advice and consent of this 
Legislative Council, power to make laws for the peace, Avelfare, and 
good government of the province, and to appropriate to the public 
service the Avhole of the revenue arising from taxes, duties, rates, and 
imposts, provided that no such law should be repugnant to the law of 
England, or interfere with the sale or appropriation of the waste lands 
of the Crown. The qualifications of members and electors of the 
new Council were to be tlie same as those of the members and electors 
of the Legislative Council of New South Wales, under the Act 5 and 
6 Vic. c. 76, as amended by 13 and 14 Vic. c. 59. The Council could 
not pass any law appropriating to the public service any sum of 
money unless the Governor should first recommend to the Council 
that provision should be made for such appropriation. On 21st July, 
1851, the Legislative Council, consisting of 24 members, was 
constituted. 

The New Constitution. — In 1853 the Legislative Council of 
South Australia, in pursuance of the power conferred by sec. 32 of 
the Act 13 and 14 Vic. c. 59, passed a Bill to establish a bi-cameral 
legislature for South Australia, consisting of a Legislative Council of 
not less than 12 members to be nominated by the Crown, and a House 
of Assembly of 36 members to be elected by the inhabitants. The 
qualifications of electors and members were defined in the Bill, which, 
inter alia, contained a provision limiting the right of the Crown in the 
disallowance of Bills. The Bill was passed by the Council and 
reserved for the Queen's assent, which was refused on the ground 
that its provision limiting the Crown's right of disallowance of Bills 
was in excess of the power conferred in sec. 32. 

On 15th August, 1855, the old Council of 1851 was dissolved by 
proclamation, and a new Council was duly constituted, partly by 
election and partly by nomination. In the meantime a copy of the 
Constitution which had been passed by the Tasmanian Legislative 
Council was forwarded by the Secretary of State for the Colonies to 
the Governor, Sir Richard Graves McDonnell, with an intimation that 
a Bill drawn on similar lines would be sanctioned. A second Bill to 
create a bi-cameral legislature for South Australia was then introduced 
into the newly-constituted Council. It provided for the creation of 
two elective Houses to take the place of the Council created by the 
Act 13 and 14 Vic. c. 59. This Bill was to be called a Constitution 
Act. Like its Tasmanian model, however, it conferred no law-making 



COLONIAL GOVERNMENT IN AUSTRALIA. 65 

power on the bi-cameral legislature, except by reference. In order 
to ascertain the principal legislative powers and functions of the Par- 
liament of Soutb Australia, reference has to be made to the Act 13 
and 14 Yic. c. 59, defining the legislative powers and functions of the 
Council for which it was substituted. 

According to that Act the Parliament was authorized to make 
laws for the peace, order, and good government of South Australia; 
to raise revenue by various methods of taxation, including the impo- 
sition of duties of customs, and to appropriate the public revenue for 
public purposes. By the proposed new Constitution all Bills for 
appropriating any part of the revenue of the province, or for imposing, 
altering, or repealing any rate, tax, duty, or impost, were required to 
originate in the House of Assembly. Neither House could pass any 
vote, resolution, or Bill for the appropriation of any part of the 
revenue for any purpose, unless the Governor should have first recom- 
mended to the House of Assembly that provision should be made for 
such appropriation. The appointment to all public offices under the 
Government of the province was vested in the Governor, with the 
advice and consent of the Executive Council, except the appointment 
of certain political officers, required to be members of Parliament, 
whose appointment and dismissal was vested in the Governor alone. 
After the first general election no person could hold the office of Chief 
Secretary, Attorney-General, Treasurer, Commissioner of Crown 
Lands, or Commissioner of Works, for any period longer than three 
months, unless he were a member of the Council or of the House of 
Assembly. This Bill, though described as a Constitution, was in fact 
not a Constitution, but, like that of Tasmania, a graft on, or a develop- 
ment of a pre-existing Constitution. — Sir R. C. Baker, Notes on the 
Constitution of South Australia, " Adelaide and Vicinity," p. 10. It 
was passed by the Council on 4th January, 1856, and was reserved by 
the Governor for the signification of the Queen's pleasure. It 
received the Royal assent, and was proclaimed on 24th October, 1856. 

ExLAKGED Legislative Powers. — At about the time when the Bill 
received the Royal assent, the Imperial Act (18 and 19 Vic. c. 56) 
w:is passed, authorizing the legislature of each of the Australian 
colonies to sell, dispose of, and legislate concerning the waste lands of 
the Crown in the colony. In 1865, the Colonial Laws Validity Act 
(28 and 29 Vic. c. 63) removed the common law restriction which 
prevented colonial legislatures from passing any law repugnant to the 
law of England. In 1873, the prohibition contained in the Act 13 
and 14 Vic. c. 59, preventing colonial legislatures from passing any 
law providing for the imposition of differential duties, was by the Aus- 
tralian Colonies Duties Act (36 and 37 Vic. c. 22) abolished as far as 
intercolonial duties were concerned. A list of other Imperial Acts 
enlarging the powers of the Parliament of South Australia, in common 
with those of the Parliaments of the other Australian colonies, will be 
found under the heading of " New South Wales," pp. 49-51, supra. 

Responstblk Government. — The election of members of the two 
new Houses took place in March, 1857. The first session of the new 
Parliament commenced on 22nd April, 1857, during the Governorship 
of Sir Richard Graves McDonnell. The first Responsible Ministry 



66 HISTORICAL INTRODUCTION. 

was formed by Mr. B. T. Finnis, Chief Secretary, and his colleagues 
were Mr. R. D. Hanson, Attorney-General ; Colonel E. E. Torrens, 
Treasurer ; Mr. C. Bonney, Commissioner of Crown Lands and Immi- 
gration ; and Captain A. H. Freeling, Commissioner of Public Works, 
succeeded by Mr. (afterwards Sir) Samuel Davenport. Mr. James 
Hurtle Fisher was appointed President of the Council ; and Mr- 
George Strickland Kingston first Speaker of the House of Assembly. 

Eblations op the Two Houses. — In 1857, a dispute arose between 
the two Houses of the South Australian Parliament as to their 
respective powers in dealing with Money Bills. A Bill to repeal 
certain duties of tonnage was passed by the Assembly and sent to the 
Council. The Council amended it as it would an ordinary Bill. Th& 
Bill as amended was sent back to the Assembly, which raised a ques- 
tion of privilege. The Assembly contended that the Council had no 
right to modify any Money Bill, but that it could only either pass or 
reject such a Bill. The Council replied that it had an undoubted 
right to amend all Bills whatsoever sent up to it by the Assembly. 
The dispute was eventually settled by a compromise, commonly called 
*' the Compact of 1857," which was adopted by resolutions of both 
Houses. This " Compact " defines those Bills, which the Council 
cannot amend in the ordinary way, as being " all Bills the object of 
which shall be to raise money, whether by way of loan or otherwise,. 
or to warrant the expenditure of any portion of the same," and pro- 
vides " that it shall be competent for the Council to suggest any 
alteration in any such Bills, except that portion of the Appropriation 
Bill which provides for the ordinary annual expenses of the Govern- 
ment." 

In 1881, an Act to amend the Constitution of South Australia 
(No. 236) was passed, which provided that " Whenever any Bill for 
any Act shall have been passed by the House of Assembly during any 
session of Parliament, and the same Bill, or a similar Bill with sub- 
stantially the same objects and having the same title, shall have been 
passed by the House of Assembly during the next ensuing Parliament, 
a general election of the House of Assembly having taken place 
between such two Parliaments, the second and third reading of such 
Bill having been passed in the second instance by an absolute majority 
of the whole number of members of the said House of Assembly, and 
both such Bills shall have been rejected by, or fail to become law iu 
consequence of any amendments made therein by the Legislative 
Council, it shall be lawful for, but not obligatory upon, the Governor 
of the said province, by proclamation to be published in the Govern- 
ment Gazette, to dissolve the Legislative Council and House of 
Assembly, and thereupon all members of both Houses of Parliament 
shall vacate their seats, and members shall be elected to supply the 
vacancies so created; or for the Governor to issue writs for the 
election of one, or not more than two, new members for each district 
of the Legislative Council : Provided always that no vacancy, whether 
by death, resignation, or any other cause, shall be filled up while the 
total number of members shall be 24 or more ;" and that " in the 
event of the Council being dissolved, six members shall be elected for 
each of the said districts, and the names of such members shall 



COLONIAL GOVERNMENT IN AUSTRALIA. 67 

be placed on the roll of members for the said districts in the 
order provided for in Section 12 of this Act, and thereafter the several 
periodical retirements of members referred to in Sections 8 and 13 of 
this Act shall date from the daj of their election.'^ Hitherto no 
double dissolution has taken place under this section. 

Reforms. — Bv the Constitution Amendment Act, 1894 (Xo. 613, 
assented to in 1895), the South Australian Parliament granted to 
women possessing the necessary qualification the right to vote for 
members of both Houses of Parliament. 

The Legislative Council of South Australia at present is com- 
posed of 24 members who are theoretically elected for nine years. 
Every three years eight members whose names stand first on the roll 
retire and are eligible for re-election. The qualifications of members 
of the Council are : male ; 30 years ; natural-born or naturalized 
subjects ; resident in the Province for three years if natural-born, 
and five years if naturalized ; no property qualification. The quali- 
fications of electors for the Council are : adults ; natural-born or 
naturalized subjects ; ownership of freehold property of the clear value 
of £50 ; or ownership of leasehold estate of the clear annual value of 
£20; or occupation of a dwelling house of the clear annual value of 
£25. The Assembly consists of 54 members, elected for a period of 
three years, subject to be sooner dissolved by the Governor. They, 
as well as members of the Council, are entitled to £200 per year each 
for their services. Manhood suffrage for Assembly elections was 
adopted in 185(3 ; and in 1895 the franchise was extended to women. 
Under the Electoral Code, 1896, all British subjects of the age of 21 
years, inhabitants of South Australia, who have been registered upon 
any Assembly roll for six months, may vote for members of the Assem- 
bly. There is no plural voting ; and provision is made for absent 
electors to poll their votes. 



(.5) WESTERN AUSTRALIA. 



First Statutory Authority. — During the French scare of 1826, 
when the French were suspected of designs to annex unoccupied 
portions of the Australian continent, Governor Ralph Darling des- 
patched from Sydney a detachment of the 39th Regiment with a 
number of convicts, in all seventy-five persons, in command of Major 
Lockyer, to occupy King George's Sound, with a view to taking 
possession of the western part of the continent. In 1827-8, Captain 
James Stirling, in H.M.S. Success, surveyed the coast from King 
George's Sound to Swan River, and being favourably impressed with 
its suitability for settlement, he recommended the formation of a 
colony there. In 1829, Captain Fremantle, in H.M.S. Challenger, 
was sent to do pioneering work ; he hoisted the British flag on a spot 
near the mouth of Swan River, which now bears his name. On 
1st June, 1829, Captain (afterwards Sir) James Stirling arrived at 
Swan River in the Parmelia, with 800 intending settlers, from which 
date the history of the colony commences. Captain Stirling was the 
first Lieutenant-Governor, and the ofl&cials associated with him were : — 



68 HISTORICAL INTRODUCTION. 

Mr. Peter Brown, Colonial Secretary; Lieutenant J. S. Howe, R.N., 
Surveyor ; Mr. C. Sutherland, Assistant-Surveyor ; Mr. H. Morgan, 
Storekeeper ; Mr. W. Shilton, Clerk to the Secretary ; Mr. J. Drum- 
mond. Agriculturist; and the Rev. J. B. Wittenoom, first colonial 
Chaplain. 

In the same year the first Imperial Act applicable to Western 
Australia was passed, viz., 10 Geo. IV. c. 22. It was intituled "An 
Act to provide until the 31st day of December, 1834, for the govern- 
ment of His Majesty's settlements in Western Australia, on the 
western coast of New Holland." It will be noticed that the name 
" Australia," first suggested for the continent in 1814 by Matthew 
Flinders, is here used and for the first time sanctioned by an Imperial 
Act. See p. 33, supra. By that Act the King, with the advice of 
the Privy Council, was empowered to make, ordain, and to authorize 
any three or more persons resident within the settlements, to make, 
ordain, and constitute laws, institutions, and ordinances for the 
peace, order, and good government of His Majesty's subjects and 
others within the settlements. 

In 1831 Captain Stirling was appointed " Governor and Comman- 
der-in-Chief of His Majesty's settlements on the west coast of 
Australia," and, by letters patent. Vice- Admiral, with authority from 
Cape Londonderry (lat. 13° 44' S.) to West Cape Howe, in lat. 35° 8' 
S., and from Dirk Hartog Island (long. 112° 52' E.) to long. 129° E. 
He was authorized to appoint an Executive Council, to provide for 
the defence of the colony, to institute local government and dispose 
of the land according to British law. The members of the first 
Council were : — Colonial Secretary and Military Commander, Captain 
Irwin ; Surveyor-General and Advocate-General, Mr. G. F. Moore : 
Commissioner of Civil Courts and Chairman of Sessions, Mr. W. H. 
Mackie; Resident Magistrates, Mr. G. Leake, Mr. H. Whitfield, 
Colonel J. Molloy, and Sir R. Spenser. Under the Act of George IV., 
a Legislative Council was formed consisting of members of the Execu- 
tive Council and two nominated members, the Governor being Presi- 
dent and Mr. (afterwards Sir) Luke S. Leake Speaker. In 1839 Mr. 
John Hutt succeeded Captain Stirling as Governor. For fifty years 
the history of the colony was uneventful except for the explorations 
of Major Warburton, Mr. Ernest Giles, and Mr. (afterwards Sir) John 
Forrest. 

A Representative Legislature. — By the Act 13 and 14 Vic. c. 59 
(5th August, 1850) sec. 9, it was enacted "that upon the presentation 
of a petition signed by not less than one-third in number of the house- 
holders within the colony of AVestern Australia, praying that a Legis- 
lative Council according to the provisions of this Act be established 
within such colony, and that provision be made for charging upon the 
revenue of such colony all such part of the expenses of the civil 
establishment thereof as may have been previously defrayed by Par- 
liamentary grants, it shall be lawful f9r the persons authorized^ and 
empowered to make, ordain, and establish laws or ordinances for the 
government of the said colony, by any law or ordinance to be made 
for that purpose, subject to the conditions and restrictions to which 
laws or ordinances made by such persons are now subject, to establish 



COLONIAL GOVERX^FENT IN AUSTRALIA. 69 

a Legislative Council within such colony, to consist of such number of 
members as thej shall think fit, and such number of the members of 
such Council as is equal to one-third part of the whole number of 
members of such Council, or, if such number be not exactly divisible 
by three, one-third of the next greater number which is divisible by 
three, shall be appointed by Her Majesty, and the remaining members 
of the Council shall be elected by the inhabitants of the said colony." 
Under this Act Western Australia, in 1870, was granted a Legislative 
Council consisting of 26 members, nine of whom were nominated and 
17 were elected. 

Responsible Goverxmext Sought. — Three years after the grant 
of this instalment of Representative Institutions a movement was 
commenced in Western Australia in favour of Responsible Government 
as it existed in the Eastern colonies. Earl Kimberley, in reply to the 
first application, said : " Her Majesty's Government would not be 
disposed to resist any widespread and sustained desire which might 
prevail in the colony for Responsible Government." In 1874 a draft 
of a Constitution Bill was sent to the Secretary of State for the 
Colonies, who, however, decided that the colom^ was not yet ready for 
the change. On 9th April, 1884, the Governor, Sir Napier Broome, 
reported that though he saw no valid reason for withholding free 
institutions from the colony, after its inhabitants should have expressed 
a general and decided wish to take upon themselves the burden and 
responsibility of that form of government, he was strongly of opinion 
that, until such a wish was expressed, which certainly it had not been 
as yet, it would be a mistake to make such a great and irretrievable 
change. He also said that Western Australia must be separated into 
two parts, and that the northern portion, above the 26th degree of lati- 
tude, should remain for the present a Crown colony. On 6th July, 
1887, the Legislative Council of Western Australia (1) affirmed the 
desirability of the concession of self-government, but (2) protested 
against the division of the colony. On 12th July, 1887, the Governor 
reported that having carefully considered the whole matter, he 
strongly supported both the first and second of the resolutions, and 
gave his reasons why he had changed his opinion in respect to the 
suggested division of the colony in his despatch of three years pre- 
vious, but added that it was only a matter of time when Western 
Australia would be separated into two or more colonies. 

In a despatch, dated December, 1887, the Secretary of State 
intimated that Her Majesty's Government favoured the view that, in 
any new constitutional scheme, the colony should be divided at about 
latitude 26' (or in the neighbourhood of the Murchison River) ; that 
it should be lawful for the legislature of Western Australia to regu- 
late, by Act passed in the usual way, the sale, letting, and other dis- 
posal of the waste lands of the Crown south of that line, and the 
disposal of proceeds arising therefrom ; and that all the regulations 
affecting the sale, letting, disposal and occupation of waste lands of 
the Crown in the territory north of that line should remain under the 
control of Her Majesty's Government, the proceeds of all land sales 
being invested at intei-est, to form a fund of which the principal 
would be reserved for the benefit of anj' colony or colonies, which 



70 HISTORICAL INTRODUCTION. 

niiglit thereafter be created in such northern territory, except so far 
as it might from time to time be expended for the special advance- 
ment of the district in which it was raised. 

Peepaeation of a New Constitution. — In 1889, the Legislative 
Council was dissolved and a general election took place, the principal 
question being the introduction of Eesponsible Government. The 
new Council passed a resolution, without dissent, in favour of the 
proposed change. A new Constitution was then drafted by the 
Council. It provided for the creation of a bi-cameral legislature, 
composed of an elective Upper House of lb members, and an elective 
Lower House of 30 members. To this legislature it was proposed to 
give powers and functions similar to those vested in the legislatures 
of the eastern colonies, including the disposition of the waste lands of 
the Crown. It Avas further provided that, notwithstanding anything 
in the Constitution, Her Majesty might divide the colony of Western 
Australia by separating therefrom any portion thereof, and either 
erect the same or any part thereof into a separate colony or colonies, 
or subdivide any colony so erected, or re-unite to the colony of Western 
Australia any part of any colony so created. The sum of £5,000 per 
year was appropriated for the benefit of the aboriginal natives within 
the colony, to be expended in providing them with food and clothing 
and in promoting their education. Pensions were provided for Sir 
Malcolm Fraser, Colonial Secretary; Mr. Charles N. Warton, Attorney- 
General; Mr. A. O'Grady Lefroy, Colonial Treasurer; and Mr. John 
Forrest, Surveyor-General and Commissioner of Crown Lands, upon 
their retirement from oflBce on political grounds. 

The Bill was forwarded to the Secretary of State for the Colonies, 
who, on 31st August, 1888, returned it with suggested amendments — 
the principal being that the members of the Council should be 
nominated, instead of elected. The Legislative Council agreed to 
accept the proposed amendments, subject to the provision that after 
the expiration of six years, or as soon as the colony acquired a popula- 
tion of 60,000, the Upper House should be constituted by election, 
instead of nomination. The Bill was passed and reserved on 29th 
April, 1889. This compromise was accepted by the Secretary of State 
for the Colonies, Lord Knutsford, and on 11th July, 1889, he moved 
the second reading of a Bill to enable Her Majesty to assent to a Bill for 
conferring a Constitution on Western Australia. One of the grounds 
suggested, as justifying the change, was that it was desirable that all 
the colonies on the Australian continent should, as soon as practicable, 
be placed on the same footing. Until there was uniformit}' of govern- 
ment, there could be little chance of any system of federation, to 
which he looked forward as a change which would largely tend to 
increase the wealth and strength of the colonies. The Bill Avas passed 
by the House of Lords, but it encountered strong opposition in the 
House of Commons, where the principal objection raised was the in- 
advisability of handing over such a vast area of country, viz., 978,000 
square miles, to a Government responsible to only a small population, 
not exceeding 40,000 inhabitants. On the 26th August the Bill was 
withdrawn. 

Responsible Government. — In the next session of Parliament, 



COLONIAL GOVERNMENT IN AUSTRALIA. 71 



however, the Bill received the concurrence of both Houses. It 
became law on the 25th July, 1890; the new Constitution was pro- 
claimed on 21st October, 1890. It is embodied in the Imperial Act, 
o3 and 54 Vic. c. 26. The first Kesponsible Ministry was composed 
of Sir John Forrest, Colonial Treasurer and Premier ; Mr. Geo. Shen- 
ton. Colonial Secretary (succeeded by Mr. Stephen Hy. Parker) ; Mr. 
Edward Home Wittenoom, Minister of Mines; Mr. Stephen Burt, 
Q.C., Attorney-General (succeeded by Mr. R. VT. Pennefather) ; Mr. 
William Edward Marmion, Commissioner of Crown Lands (succeeded 
by Mr. Alexander Robert Richardson) ; Mr. Harry Whittall Venn, 
Commissioner of Railways and Public Works. 

Reforms. — On 18th July, 1893, the population of the colony 
being then beyond 60,000, the le^slature of Western Australia passed 
an Act, 57 Vic. Xo. 14, to amend the Constitution, abolishing the 
nominee Council and substituting one elected by the qualified inhabi- 
tants of the colony. 

In the session of 1899 a "Constitution Acts Amendment Act" 
was passed by both Houses of the West Australian Parliament, and 
reserved on 16th December for the Royal assent. This Act, when 
assented to, will introduce several important changes. Besides con- 
solidating previous Constitution Amendment Acts, it increases the 
numbers of both Houses, extends the franchise for both Houses to 
women, reduces the period of residence in the colony necessary in 
order to qualify as an elector, and reduces the duration of the 
Assembly to three years from the date of its first meeting. The 
Legislative Council is to consist of 30 members, returned by 10 elec- 
toral provinces. Under this Act the qualifications of Councillors are : 
— Male ; 30 years ; a British subject, either natural-born and resident 
in the colony two years, or naturalized and resident for five years. 
Every adult person, being a natural-bom or naturalized British sub- 
ject, resident six months in the colony, is entitled to be registered as 
a Council elector in every Province in which he or she has a freehold 
qualification of £100 capital value, a household or leasehold qualifica- 
tion of £25 a year, or a Crown lease or license of £10 a year. For 
membership of the Assembly, of which there are to be 50 members, 
the qualifications are : male ; 21 years ; a British subject, either 
natural-born and resident in the colony for one year, or naturalized 
for five years and resident two years. Every adult person, being a 
natui*al-bom or naturalized British subject, is entitled to be regis- 
tered as a voter if he or she has resided in the colony for 
six months, and is entitled to vote after being registered for six 
months; and is also entitled to a property vote in every district in 
which he or she has a freehold qualification of £50 capital value, a 
leasehold or household qualification of £] a year, or a Crown lease or 
license of £5 a year. 



72 HISTORICAL INTRODUCTION. 



(6) QUEENSLAND. 



Foundation. — In 1823 Lieutenant Oxley^ the Surveyor-General 
of New South Wales, was directed by Sir Thomas Brisbane, Goveruor 
of New South Wales, to inspect Port Bowen, Port Curtis, and More- 
ton Bay, in order to ascertain which, if any of them, was suitable for 
the establishment of a new penal settlement. In the course of his 
explorations he discovered a large river flowing into Moreton Bay, 
which he named the Brisbane, and explored for the distance of fifty 
miles. He was so satisfied with the country that he reported in favour 
of the establishment of a penal depot on the banks of the Brisbane. 
In September, 1824, in company with Lieutenant Miller, who was in 
charge of a detachment of the 40th regiment, Oxley returned to the 
Brisbane River and formed the nucleus of a prison settlement, com- 
prising thirty convicts, near the present site of the city of Brisbane. 
In the following year the Brisbane River was further examined by 
Major Lockyer of the 57th regiment; Captain Miller was the first 
Commandant. In 1839 it was determined to abandon Moreton Bay 
as a penal settlement. Sir George Gipps laid out the plan of Brisbane 
in 1841. On the 4th May, 1842, free settlement commenced; in the 
same year Captain J. C. Wickham was appointed Police Magistrate 
and afterwards Government Resident. 

Provision for Separation. — The Act 5 and 6 Vic. c. 76 (30th 
July, 1842) empowered Her Majesty, by letters patent, to separate 
from New South Wales any part of the territory of that colony lying^ 
to the northward of 26° south latitude, and to erect such territory into 
a separate colony or colonies. It was subsequently found that the 
26th parallel was not far enough south to meet the requirements of a 
new^ colony, and by the Act 13 and 14 Vic. c. 59 s. 34 it was declared 
that upon the petition of the inhabitant householders of that part of 
the territory of New South Wales lying to the northward of the 30^ 
of south latitude. Her Majesty might detach such territory from the 
colony of New South Wales and erect it into a separate colony or 
colonies. By the Constitution Statute and Act of New South Wales, 
18 and 19 Vic. c. 54 (16th Jul}', 1855), the power previously' granted 
to alter the northern boundary of New South Wales was distinctly 
preserved, and Her Majesty was authorized, by letters patent, to ei-ect 
into a separate colony or colonies any territory which might be so 
separated from New South Wales. It was further enacted that Her 
Majesty, by such letters patent or by Order in Council, might make 
provision for the government of any such new colony, and for the 
establishment of a legislature therein, in manner as nearly resembling 
the form of government and legislature establi.shed in New South 
Wales as the circumstances of the new colony would permit. 

In 1843, the Moreton Bay settlers found themselves included in a 
large electoral district constituted under the Act 5 and 6 Vic. c. 76 
for the purpose of returning representative members to the new 
Legislative Council of New South Wales. In 1851, Moreton Bay was 
made a separate electoral district, and was assigned one elective 
member in the Council of New South Wales; in 1853, it was assigned 



COLONIAL GOVERNMENT IN AUSTRALIA. 73 

an additional member. When the new Constitution of New South 
Wales came into force in 1856 the Moreton Bay district was divided 
into eight electorates, returning nine members to the Legislative 
Assembly of New South Wales. 

Sepakation. — Petitions in favour of separation from the parent 
colony were signed and forwarded to the Imperial Government so 
early as the year 1851. It was not until 1859 that it was decided to 
grant a separation. On 6th June, 1859, letters patent were issued 
erecting the Moreton Bay district into a separate colony, under the 
name of Queensland, and appointing Sir George Ferguson Bowen to 
be Captain-General and Governor-in-Chief thereof. The boundary 
of the new colony was defined as a line commencing on the seacoast 
at Point Danger, in latitude about 28° 8' south, running westward 
alone the Macpherson and Dividing Ranges and the Dumaresq River, 
to the Mclntyre River, thence by the 29th parallel of S. latitude to 
the 141st meridian of E. longitude ; on the west, the 141st meridian 
of longitude from the 29th to the 26th parallel, and thence the 138th 
meridian north to the Gulf of Carpentaria, together with all the 
adjacent islands, their members and appurtenances in the Pacific 
Ocean. The Governor was authorized to appoint an Executive 
Council to advise and assist him in the government of Queensland. 
The Constitution of Queensland was embodied in an Order in Council 
bearing the same date as the letters patent. 

The Constitution. — The Order in Council provided that there 
should be within the colony of Queensland a Legislative Council and 
a Legislative Assembly, with the advice and consent of which Her 
Majesty should have power to make laws for the peace, welfare, and 
good government of the colony in all cases whatsoever. The Legis- 
lative Council was to be composed of persons appointed by the 
Governor, subject to the proviso that not less than four-fifths of the 
members so appointed should consist of persons not holding any office 
of emolument under the Crown except as naval or military officers. 
The members of the Council were to hold their seats for the term of 
their natural lives. The Legislative Assembly was to consist of 
members elected by the qualified inhabitants of the colony. The 
Assembly was to continue for five years from the day of the return 
of the writs for choosing the same, subject, however, to be sooner 
dissolved by the Governor. 

The powers and functions granted to this legislature were sub- 
stantially the same as those granted to New South Wales, Victoria, 
South Australia, and Tasmania, and similar restrictions were imposed. 
With reference to the relative powers of the two Houses in financial 
matters, the Council could not originate any Bills for appropriating 
any part of the public revenue, or for imposing any new rate, tax, or 
impost. The Assembly could not originate or pass any vote, resolu- 
tion, or Bill for appropriation of any part of the public revenue to 
any purpose which should not have been first recommended by a 
message from the Governor. 

The formation of the new colony was proclaimed in the London 
Gazette on 3rd June, 1859 ; Sir George Bowen arrived in Brisbane on 
10th December, 1859. The Order in Council was published in the 



74 HISTORICAL INTRODUCTION. 

Queensland Government Gazette on 29tli December, 1859. The first 
Parliament under the new Constitution was convened for the despatch 
of business on 29th May, 1859. The first Responsible Ministry was 
composed of the Hon. Robert George Wyndham Herbert, Colonial 
Secretary; Mr. Ratcliffe Pring, Attorney-General; Mr. Robert Ramsay 
McKenzie, Colonial Treasurer; Mr. Maurice Charles O'Connell, with- 
out portfolio. The Act 24 and 25 Vic. c. 44 (22nd July, 1861) was 
passed to validate and effectuate the Order in Council establishing the 
Government of Queensland, and to remove all doubts as to the legality 
of arrangements made by the Crown upon the erection of Queensland 
into a separate colony. On 28th December, 1867, the Queensland 
legislature passed an Act to consolidate the law relating to the Con- 
stitution of the colony. The Act begins with a long recital, referring 
to the Order in Council ordaining the Constitution ; the Act 5 and 6 
Vic. c. 76, relating to the Royal assent to Bills, the disallowance of 
Bills reserved, and the Governor's conformity to instructions; and the 
Act 13 and 14 Vic. c. 59, relating to the reservation of Bills. It then 
proceeds to re-enact the Order in Council, in the shape of a local 
statute, in which is embodied, in addition to the Order in Council, all 
the constitutional law of the colony passed up to that date. 

Relations op the Two Houses. — In 1 885 a dispute arose between 
the two branches of the legislature with reference to their relative 
rights and powers concerning money Bills. The two Houses had 
agreed to the following joint standing order : " In all cases, not 
herein provided for, having reference to the joint action of both 
Houses of Parliament, resort will be had to the rules, powers, and 
practice of the Imperial Parliament." The folloAving questions were 
referred to the Judicial Committee of the Privy Council for their 
detei'mination : — (1) Whether the Constitution Act, 1 867, confers on 
the Legislative Council powers co-ordinate with those of the Legisla- 
tive Assembly in the amendment of Bills, including money Bills ? (2) 
Whether the claims of the Legislative Assembly as set forth in its 
message of 12th November, 1885, are Avell founded? The answer of 
the Privy Council was as follows: — "Their Lordships agree humbly 
to report to your Majesty that the first of these questions should be 
answered in the negative, and the second in the affirmative." 

Reforms. — The number of members of the Legislative Council of 
Queensland is about 41 ; their qualifications and tenure being the 
same as those of the members of the Legislative Council of New South 
Wales. The duration of the Legislative Assembly was, in 1890, 
reduced to three years. There are 72 members of the Assembly, 
returned by 61 electorates; they are entitled to payment of £300 a 
year each for their services. Every person qualified to vote at the 
election of members of tho Assembly is qualified to be a member 
thereof. The qualifications of electors are: male; 21 years; natural- 
born or naturalized subjects ; resident in an electoral district for six 
months. Owners of freehold estate of the clear value of £100, or £10 
leaseholders, have the right to vote in every district in which the pro- 
perty is situated. 



COLONIAL GOVERNMEXT IN AUSTRALIA. 75 



(7) NEW ZEALAND. 



FocNDATiox. — In 1823, New Zealand was under the nominal 
protection of the Government of New South Wales^ and the juris- 
diction of the Supreme Court of that c-olony was extended to embrace 
the crude groups of settlements which were gradually being formed 
along the coasts of the islands. In 1826, Captain Herd ari-ired at 
Hauraki Gulf with sixty settlers, but he had to abandon the attempt 
to settle on account of the hostility of the natives. In 1831, thirteen 
chiefs appealed to the English Government for protection against 
traders and others with whom they had come into conflict. Accord- 
ingly, in 1833, Mr. James Busby was appointed Resident at the Bay 
of Islands, and shortly afterwards Lieutenant McDonell, R.X., was 
appointed to act in a similar capacity at Hokianga. European 
population continued to increase at the Bay of Islands until 1837, 
Avhen the Government of New South Wales despatched Captain 
Hobson to enquire into the lawless state of affairs at Kororareka, the 
main settlement. No action was taken to establish a government in 
any part of New Zealand until 1839, when the New Zealand Com- 
pany sent a colonizing expedition, under the command of Colonel 
William Wakefield, to Port Nicholson, where he took possession in 
the name of the company, fired a royal salute, and hoisted " the New 
Zealand flag." Other adventurers subsequently arrived at the same 
locality and the town of Wellington was founded. 

The Queen's Sovereignty. — This action of a private company 
forced the hands of the Imperial Government, and it was then decided 
to annex the islands to New South Wales. Letters patent were 
prepared extending the jurisdiction of New South Wales so as to 
include New Zealand, and Capttiin Hobson was appointed Lieutenant- 
Governor under Sir George Gipps, the Governor of New South 
Wales. Captain Hobson proceeded to the Bay of Islands, and 
Kororareka, wdiich he named Russell, became the seat of government. 
Captain Hobson convened a conference of native chiefs and British 
subjects, at which he read his commission and a proclamation, assert- 
ing the Queen's authority in the islands and declaring that transac- 
tions in land which had not received confirmation by the Government 
would be considered illegal. Subsequently Captain Hobson entered 
into negotiations with the native chiefs of the north island, resulting 
in the Treaty of Waitangi being signed by a number of chiefs, 
ceding the sovereignty of New Zealand to Great Britain ; and in con- 
sideration thereof they were guaranteed the preservation of their 
proprietary interests in the soil, subject to the condition that the 
Crown was to have the right of pre-emption — that is the first right of 
purchase — of all Maori lands. On 21st May, 1840, the sovereignty 
of the Queen over the islands was proclaimed. 

Seiakatiox. — By the Act 3 and 4 Tic. c. 62 (7tli August, 1840), 
Her Majesty was empowered to erect into a separate colony or colonies 
any islands comprised within the colony of New South Wales. By 
letters patent bearing date ICth November, 1840, Her Majesty erected 
the islands of New Zealand into a separate colony, independent of 



76 HISTORICAL INTRODUCTION. 

New South Wales, and the Governor and certain other residents 
of the colony were appointed a Legislative Council with power to make 
laws for the peace, order, and good government thereof. The new 
colony was proclaimed on 3rd May, 1841. Captain Hobson was the 
first Governor of New Zealand, a post which he occupied until his 
death in 1842. He was succeeded by Captain (afterwards Admiral) 
R. Fitzroy. The seat of government was, on account of outrages 
by the natives, removed from Russell to Auckland. Governor Fitzroy 
was succeeded in 1845 by Captain (afterwards Sir George) Grey. 

In 1846 an Act for the Government of New Zealand (9 and 10 Vic. 
c. 103) Avas passed by the Imperial Parliament. This Act contained 
a scheme for the division of the colony into two provinces, one styled 
New Ulster, comprising almost the whole of the northern island ; and 
the other New Munster, comprising the middle and southern islands ; 
each province having a separate Lieutenant-Governor, and a separate 
Executive Council charged with the administration of local affairs. 
For the whole of the colony there was to be a Governor-in-Chief and 
a Legislative Council having power to make laws of general applica- 
tion. This plan of government, however, did not work satisfactorily, 
and the operation of the Act was suspended. The movement in 
favour of Representative and Responsible Government made consider- 
able progress during Governor Grey's tei'm of office. In 1851 he 
recommended the Imperial Government to pass an amending law 
granting a new Constitution in place of that embodied in the suspended 
Act. 

The New Constitution. — On 30th June, 1852, the Act 15 and IG 
Vic. c. 72 came into force in New Zealand, under which a system of 
provincial and general government was inaugurated. Six provinces 
were established, viz., Auckland, Canterbury, New Plymouth, Nelson, 
Otago, and Wellington, the number being subsequently increased to 
nine. Each province was to be ruled by a Superintendent and a pro- 
vincial Council. The Superintendent was to be elected by the qualified 
inhabitants of each province voting as one body ; each Council was to 
consist of not less than nine members elected by the qualified inhabi- 
tants of its province voting in districts. The Superintendent, with 
the advice and consent of the Council of each province, was empowered 
to make all such laws and ordinances as might be required for the 
peace, order, and good government of the province, provided that the 
same were not repugnant to the law of England, or to the law of the 
colony otherwise enacted. Generally speaking the powers and func- 
tions of the Councils were of a local and municipal character. The 
Superintendent could, according to his discretion, assent to a Bill 
passed by the Council of his province, or he could withhold his assent 
or reserve the Bill for the signification of the Governor's pleasure. 

The Act further provided that there should be within the colony 
of New Zealand a General Assembly, to consist of the Governor, a 
Legislative Council, and a House of Representatives. Members of 
the Council, of whom there were to be not less than 10, were to be 
appointed by the Queen ; they wei-e to hold their seats for life, sub- 
ject to resignation, forfeiture for non-attendance, and other disabilities. 
The House of Representatives was to consist of not less than 24 nor 



COLONIAL GOVERNMENT IX AUSTRALIA. 77 

more than 42 members^, elected by the qualified inhabitants of the 
colony. Each House of Representatives was to continue in existence 
for five years, unless sooner dissolved by the Governor. The General 
Assembly was to have power to make laws for the peace, order, and 
^ood government of New Zealand, provided that no such laws should 
be repugnant to the law of Eugland, and that Bills passed by the 
General Assembly should control and supersede any law or ordinance 
in any way repugnant thereto passed by the provincial councils. 
Under subsequent Imperial legislation the powers and functions of 
the General Assembly of New Zealand were, in common with those of 
the Parliaments of Australia, greatly enlarged. 

Sir George Grey was, on 13th September, 1852, appointed 
Governor of the colony under the new Constitution; he, however, 
was appointed Governor of Cape Colony before the arrangements 
were completed for the inauguration of the new Representative 
system. To Colonel Wynyard, the officer commanding the Imperial 
troops, was assigned the important task of bringing the new machinery 
of government into operation. 

Responsible Goverxmext. — The first session of the General 
Assembly was opened at Auckland on 25th May, 1854. Great dis- 
satisfaction was expressed when it was found there was no provision 
in the Constitution, or in the Governor's instructions, for the introduc- 
tion of Responsible Government. The official members of the old 
Executive Council continued to hold office, although none of them 
were members of the new Parliament, which had no control of the 
Executive except by the refusal of supplies. The Constitution did 
not make it obligatory that official members of the Executive Council 
should be members of the legislature. The Governor infonned the 
House of Representatives that he had no power to supersede the Exe- 
cutive Council which was in existence before the Constitution was 
passed. During the first three months of the session no business was 
done by the new Parliament. The Governor then sent a message 
informing the Parliament that he would urge the Imperial Govern- 
ment to amend the Constitution by making provision for the appoint- 
ment of Responsible Ministers. The Parliament was then prorogued 
for a fortnight. In the meantime four members of the House of 
Representatives were made members of the Executive Council. Upon 
the re-opening of Parliament an amendment to the Address-in-Reply 
was carried, in the House of Representatives, by 22 votes to 4, declar- 
ing that the House had no confidence in a mixed Executive consisting 
partly of members of Parliament and partly of Government officials. 
The four new ministers then resigned. As the result of the action of 
the House of Representatives the Governor subsequently received 
authority from the Imperial Government to appoint Responsible 
Ministers, subject to the condition that the official members of the old 
Executive Council were to be granted pensions to which they were 
entitled by Imperial regulations. 

In September, 1855, Colonel Gore Browne became Governor of 
New Zealand, and in his first message to the General Assembly he 
communicated the desire of Her Majesty's Government that the colony- 
should enjoy "the fullest measure of self-government which is con 



78 HISTORICAL INTRODUCTION. 

sistent with its allegiance to the British Crown/' and that accordingly 
he would, as speedily as possible, " carry out in its integrity the prin- 
ciple of ministerial responsibility, being convinced that any other 
arrangements would be ineffective to preserve the harmony between 
the legislative and executive branches of the government, which is so 
essential to the successful conduct of public affairs/^ In April, 1856, 
the Governor commenced negotiations with one of the leaders of the 
House of Representatives for the formation of his first Government, 
with the result that the Bell-Sewell Ministry took office, which they 
held from 7th May to 20th May, 1856; they were succeeded by the 
Fox Ministry, which held office fi'om 20th May to 2nd June, 1856, 
which was followed by the Stafford Ministry, holding ofl&ce from 2nd 
June, 1856, to 12th July, 1861. 

The system of Provincial Government remained in force as an 
integral part of the Constitution until the 1st November, 1876, when 
it was abolished by an Act of the General Assembly, and most of the 
powers and functions previously exercised by Superintendents and 
Councils were vested in municipal institutions of the ordinary type. 
In 1865 the seat of Government was, by an Act of the General 
Assembly, removed from Auckland, and, on the recommendation of 
certain commissioners, appointed by the Australian Governors at the 
request of the General Assembly, Wellington became the capital. 

Reforms. — The Constitution of the Legislative Council was altered 
by an Act which came into operation on 17th September, 1891; under 
which all members added subsequently to that date were appointed 
for the limited period of seven years instead of for life. They are, 
however, eligible for re-appointment. Members of the Council are 
paid £150 per year for their services. For membership of the House 
of Representatives no property qualification is required, and every 
adult person whose name is properly registered is entitled to vote at 
the election of members of the House. The House consists of 74 
members, including four Maori representatives, who are paid at the 
rate of £240 per year. Its duration from the return of the writs was, 
in 1879, reduced from five years to three years, subject to being 
sooner dissolved by the Governor. 



THE FEDERAL MOVEMENT IX AUSTRALIA. 

THE FEDERAL MOVEMENT IN AUSTRALIA. 

(1) THE GER:N[ of FEDERATION. 



The Beginnings op Sepaeation. — Early Australian history, natur- 
ally enough, is a history of isolation; of the separate progress of widely 
distant coast settlements, and their endeavours to become self-sufficient 
and to obtain independent self-governing institutions. As we have 
already seen, Xew South Wales once comprised (nominally) the whole 
of the continent of Australia east of the 129th meridian (the present 
eastern boundary of "Western Australia), together with the "adjacent 
islands," and Tasmania. But for many years it meant little more 
than the settlement at Sydney. Hobart was founded in 1803, and 
Moreton Bay in 1824, both being administered from Sydney. The 
first actual separation was in 1825, when Van Diemen's Land was 
erected into a separate colony. Western Australia in 1829, and 
South x\ustralia in 1836, were also founded as separate colonies. The 
mainland of Australia was thus parcelled out into three great 
divisions, while the island of Van Diemen's Land formed a fourth. 
The Port Phillip settlement, definitely colonized in 1836, and the 
Moreton Bay settlement, continued to form part of Xew South Wales. 
In 1839 Xew Zealand was also proclaimed a dependency of Xew South 
Wales; but in 1841 it was proclaimed as a separate colony. 

Intercolonial Reciprocity Attempted. — The actual isolation of 
these settlements prevented any need of union being felt ; and the 
settlers were too absorbed in their daily needs to give much attention 
to the political wants of the future. Xevertheless some early attempts 
were made to secure reciprocal freetrade between the colonies — 
attempts which were unfortunately thwarted by unsympathetic Secre- 
taries of State. All the colonies imposed import duties for purposesji 
of revenue; and as trade developed, these duties began to wear a pro- ' 
tective aspect. For many years after the separation of Van Diemen's 
Land it was the practice in Xew South Wales — contrary to the strict 
letter of the law — to admit imports from Van Diemen's Land free, 
though levying duties on similar goods from elsewhere; whilst Van 
Diemen's Land reciprocated by inserting in her Customs Duties Acts 
an exemption in favour of imports from Xew South Wales. The 
separation of Xew Zealand made the need of intercolonial freetrade 
more apparent ; and in 1 842 the Legislative Council of Xew South. 
Wales passed an Act to permit goods the produce or manufacture 
of Xew Zealand or Van Diemen's Land to be imported free of 
duty. In debate the Collector of Customs suggested that, to prevent 
jealousy, the exemption should be extended to South Australia 
also, though the trade with that colony was as yet inconsiderable. 
The suggestion, however, was not adopted. In fact South Australia. 



80 HISTORICAL INTRODUCTION. 

as tlie pet colony of the Colonial Office^ was not regarded with too 
much favour in New South Wales. 

This attempt to introduce an instalment of intercolonial freetrade 
was frustrated by the disallowance of the Act. Lord •Stanley, the 
Secretary of State for the Colonies, first sent a circular despatch, 
dated 28th June, 1843, to the Governors of all the colonies, dealing 
generally with the subject of differential duties. He took the ground 
that a policy of discrimination would involve the commercial treaties 
and the foreign relations of Great Britain, and could not be satisfac- 
torily dealt with except by the Home Government; and stated roundly 
that "Her Majesty's Government decidedly object in principle to the 
, assumption by the colonial legislatures of the office of imposing 
differential duties on goods imported into the respective colonies." 
In a subsequent despatch to the Governor of New South Wales, 
announcing the disallowance of the Act, Lord Stanley further 
objected to the principle of differential duties on the ground that they 
would lead to retaliation, and to a system of protection and 
preferences. 

Governor Fitzroy's Suggestion. — Intercolonial barriers were 
thus allowed to grow up, and the fiscal policies of the colonies 
gradually drifted apart. In 1843, we find the Legislative Council of 
New South Wales carrying, on the motion of Mr. Richard Windeyer, 
a resolution asking for the disallowance of certain Acts of the 
Legislature of Van Diemen's Land, imposing a duty on tobacco and 
coal imported from New South Wales. And in 1846 the Legislative 
Council of Van Diemen's Land passed an Act abolishing the exemp- 
tion of imports from New South Wales, and thus subjecting them to 
an ad valorem duty of 15 per cent. This step was taken ostensibly to 
comply with Lord Stanley's wishes ; but really (according to Sir John 
Eardley Wilmot, the Governor of Van Diemen's Land) to secure 
protection to the local farmers. Once more, on Mr. Windeyer's 
motion, the Legislative Council of New South Wales protested, asking 
that the Act should be disallowed ; and Governor Fitzroy, in a 
despatch dated 29th September, 1846, forwarding this resolution to 
the Colonial Office, made the first recorded suggestion of the need of 
some central intercolonial authority — a suggestion which we may 
may shrewdly suspect to have been inspired by his Colonial Secretary, 
Mr. E. Deas-Thomson. He wrote : — " I feel much diffidence in 
offering an opinion so soon after my arrival in this part of the world ; 
but it appears to me that, considering its distance from Home, and 
the time that must elapse before the decision of Her Majesty's 
Government upon measures passed by the Legislatures of these 
colonies can be obtained, it would be very advantageous to their 
interests if some superior functionary were to be appointed, to whom 
all measures adopted by the local Legislatures, affecting the geiieral 
interests of the mother country, the Australian colonies, or their inter- 
colonial trade, should be submitted by the officers administering the 
several Governments, before their own assent is given to them." 



THE FEDERAL MOVEMENT IN AUSTRALIA. 81 



(2) EARL GREY'S SCHEMES. 



Earl Geey's Despatch. — Meanwhile the agitation for the 
separation of the Port Phillip district, and for more completely 
representative institutions, was going on ; and Lord John Russell's 
administration had begun, with Earl Grev as Secretary of State for 
the Colonies. Earl Grey, in his famous despatch of 31st July, 1847, 
announced his Government's intention to bring in a Bill to erect the 
southern part of Xew South Wales into a separate colony, to be 
called Victoria. Incidentally, he foreshadowed some changes in the 
Constitution of Xew South Wales. He proposed to establish a 
Legislature of two Houses instead of one, and made the startling 
suggestion that the House of Assembly should be elected by District 
Councils, or municipal bodies, instead of directly by the people. But 
to us to-day the most interesting part of his constitutional scheme 
was that which at the time received the least attention — the idea, 
previously hinted at by Governor Fitzroy, of a General Assembly to 
deal with matters of common Australian interest. We must give 
Earl Grey credit for recognizing that besides municipal and provincial 
interests on the one hand, which would be the care of the local 
Legislatures, and Imperial interests on the other hand, which would 
be the care of the Imperial Government, there must be general 
Australian interests which would need to be regulated by a central 
Australian authority. He wrote accordingly the first recorded state- 
ment of the case for Australian union : — 

" The principle ot local self-government (like every other 
political principle) must, when reduced to practice, be qualified by 
many other principles which must operate simultaneously with it. 
To regulate such afEairs with reference to any one isolated rule or 
maxim would, of course, be an idle and ineffectual attempt. For 
example, it is necessary that, while providing for the local manage- 
ment of local interests, we should not omit to provide for a central 
management of all such interests as are not local. Thus, questions 
co-extensive in their bearing with the interests of the Empire at 
large are the appropriate province of Parliament. 

" But there are questions which, though local as it respects the 
British possessions in Australia collectively, are not merely local as it 
respects any one of those possessions. Considered as members of the 
same Empire, those colonies have many common interests, the 
regulation of which, in some uniform manner and by some single 
authority, may be essential to the welfare of them all. Yet in some 
cases such interests may be more promptly, effectively, and satis- 
factorily decided by some authority within Australia itself than by 
the more remote, the less accessible, and in truth the less competent 
authority of Parliament." 

And in due course he went on to outline his project for union : — 

" Some method will also be devised for enabling the various 
legislatures of the several Australian colonies to co-operate with each 
other in the enactment of such laws as may be necessary for 
regulating the interests common to those possessions collectively. 



82 HISTORICAL INTRODUCTION. 

sucli, for example, are the imposition of duties of import and export, 
the conveyance of letters, and the formation of roads, railways, or 
other internal communications traversing any two or more of such 

colonies The subject of your own despatch of the 29th 

September, 1846, viz., the imposition of discriminating duties, in any 
Australian colony, on goods, the growth, produce, or manufacture of 
any other Australian colony, will also be adverted to, and provided 
for, in that part of the contemplated Act of Parliament whicb will 
relate to the creation of a central legislative authority for the whole 
of the Australian colonies." 

Eeception op the Despatch. — This despatch was greeted in New 
South Wales with a storm of indignation. The colonists resented the 
idea of constitutional changes as to which they had not been consulted, 
and were especially alarmed at the suggestion of indirect election, 
which would take away the instalment of representative institutions 
which they had lately won. Public meetings were held everywhere 
to express " apprehension and dismay " at the proposed changes, and 
to protest against any change about which the people of the colony 
had not been consulted. But amidst all this uproar very little was- 
said about the federal proposal. When mentioned at all, it was 
usually in a tone of mild approval — as being unobjectionable, and 
possibly even useful, but of little immediate importance. 

In May, 1848, Mr. William Charles Wentworth brought before 
the Legislative Council of New South Wales a set of resolutions 
affirming that the separation of Port Phillip might be effected without 
any material change in the Constitution of New South. Wales, and 
protesting generally against Earl Grey's proposals. One of these 
resolutions Avas "That the only useful amendment in our present Con- 
stitution suggested in the despatch is the proposition relative to a 
Congress from the various colonial legislatures in the Australian 
colonies, with power to pass laws on intercolonial questions; that such 
a Congress, if not too numerous, might be got together for short 
periods at certain intervals." A set of resolutions framed by a Com- 
mittee of the Council was ultimately substituted, and these were con- 
sidered in Committee. One of them, which was passed "almost 
without remark," declared "That this Council cannot acquiesce in any 
plan of an intercolonial Congress, in which the superior wealth and 
population of New South Wales, as compared with the other colonies 
of the Australian group, both individually and collectively, shall not 
be fully recognized as the basis of representation." These resolutions, 
however, never got beyond the Committee stage. Mr. Edward Deas- 
Thomson, Mr. Robert. Lowe (afterwards Viscount Sherbrooke), and 
■ others, wished to express approval of the proposal for a two-chambered 
legislature; and in spite of the protests of Wentworth, who com- 
plained that this introduced a debatable detail into a question of 
constitutional principle, they succeeded in carrying it. On this rock 
the Council split. On Wentworth's motion, the resolutions were 
shelved by leave being obtained to sit again that day six months. 
Consequently, though the wish to protest was unanimous, no protest 
was ever made by the Council. 

The "apprehension and dismay," however, had their effect. In a. 



THE FEDERAL MOVEMENT IX AUSTRALIA. 83 

despatch of 3ist July, 18-iS, Earl Grey disclaimed any wish to impose 
unwelcome constitutional changes on the colonies. The project of 
making District Councils serve as constituencies to the Legislature 
would be given up ; and the division of the Legislature into two 
Houses would be left for the colonists themselves to effect whenever 
they wished. The idea of an intercolonial Legislature, however, was 
adhered to. Earl Grey pointed out that communication by land 
between New South Wales and Port Phillip was already completely 
established; that the trade of Port Phillip with South Australia was 
becoming not inconsiderable ; and that the intercourse would yearly 
increase. If these portions of Australia were under independent 
legislatures, tariff differences would inevitably grow up. The extreme 
inconvenience of this would necessitate some means of providing for 
a uniform commercial policy, in order to give free scope for the 
development of their resources and their trade. How this could best 
be done was a question of some difficulty, which he reserved for more 
mature consideration. 

Committee of the Privy Council. — The details of Earl Grey's 
scheme were soon forthcoming. In 1849 a Committee of the Privy 
Council — the Committee on Trade and Plantations — was commissioned 
to enquire into the constitutional changes which it might be advisable 
to make in the Government of the Australian colonies. (For the 
nature and history of this Committee, see Jenks' Government of 
Victoria, p. 3.) The Committee brought up a report in which it 
recommended that the southern part of Xew South Wales should be 
established as a separate colony, to be called Victoria ; that each of 
the colonies of Xew South Wales, Victoria, South Australia, and Van 
Diemen's Land should have a legislature of one House, of whose 
members one-third were to be nominated by the Crown, and two-thirds 
elected; and that the Legislature of each colony should be empowered 
to alter its own Constitution. On the subject of a uniform tariff and 
a federal legislature the Committee reported as follows : — 

" There yet remains a question of considerable difficulty. By far 
the larger part of the revenue of the Australian colonies is derived 
from duties on customs. But if, when Victoria shall have been 
separated from New South Wales, each province shall be authorized 
to impose duties according to its own wants, it is scarcely possible but 
that in process of time differences should arise between the rates of 
duty imposed upon the same articles in the one and in the other of 
them. There is already such a difference in the tariffs of South Aus- 
tralia and New South Wales, and although, until of late, this has been 
productive of little inconvenience, yet with the increase of settlers on 
either side of the imaginary line dividing them, it will become more 
and more serious. The division of New South Wales into two colonies 
would further aggravate this inconvenience, if the change should lead 
to the introduction of three entirely distinct tariffs, and to the conse- 
quent necessity for imposing restrictions and securities on the import 
and export of goods between them. So great indeed would be the 
evil, and such the obstruction of the intercolonial trade, and so great 
the check to the development of the resources of each of these 
colonies, that it seems to us necessary that th6re should be one tariff 



84 HISTORICAL INTRODUCTION. 

common to them all, so that goods might be carried from the one into 
the other with the same absolute freedom as between any two adjacent 
counties in England. 

'* We are further of opinion that the same tariff should be estab- 
lished in Van Diemen's Land also, because the intercourse between 
that island and the neighbouring colonies in New Holland has arisen 
to a great importance and extent, and has an obvious tendency to 
increase. Yet fiscal regulations on either side of the intervening 
strait must of necessity check, and might perhaps to a great extent 
destroy, that beneficial trade. 

" If the duties were uniform, it is obvious there need be no 
restrictions whatever imposed upon the import or export of goods 
between the respective colonies, and no motive for importing into one 
goods liable to duty which were destined for consumption in another; 
and it may safely be calculated that each would receive the proportion 
of revenue to which it would be justly entitled, or at all events that 
there would be no departure from this to an extent of any practical 
importance. 

"Hence it seems to us that a uniformity in the rate of duties 
should be secured, 

" For this purpose we recommend that a uniform tariff should be 
established by the authority of Parliament, but that it should not take 
effect until twelve months had elapsed from the promulgation in the 
several colonies of the proposed Act of Parliament. That interval 
would afford time for making any financial arrangements which the 
contemplated change might require in any of them, and by adopting 
the existing tariff of New South Wales (with some modifications, to 
adapt it to existing circumstances) as the general tariff for Australia, 
we apprehend that there would be no risk of imposing upon the 
inhabitants of these colonies a table of duties unsuited to their actual 
wants. We should not, however, be prepared to offer this recommen- 
dation, unless we proposed at the same time to provide for making 
any alteration in this general tariff which time and experience may 
dictate, and this we think can only be done by creating some 
authority competent to act for all those colonies jointly. . 

" For this purpose we propose that one of the Governors of the 
Australian colonies should always hold from Your Majesty a com- 
mission constituting him the Governor-General of Australia. We 
think that he should be authorized to convene a body to be called the 
General Assembly of Australia, at any time and at any place within 
Your Majesty's Australian dominions which he might see fit to 
appoint for the purpose. But we are of opinion that the first 
convocation of that body should be postponed until the Governor- 
General should have received from two or more of the Australian 
legislatures addresses requesting him to exercise that power. 

" We recommend that the General Assembly should consist of 
the Governor-General, and of a single House, to be called the House 
of Delegates. The House of Delegates should be composed of not 
less than 20 nor of more than 30 members. They should be elected 
by the legislatures of the different Australian colonies. We subjoin 
a schedule explanatory of the composition of this body, that is, of 



THE FEDERAL MOVEMENT IN AUSTRALIA. 85 

the total number of delegates, and of the proportions in which each 
colony should contribute to that number. 

" We think that Your Majesty should be authorized to establish 
provisionally, and in the first instance, all the rules necessary for the 
election of the delegates, and for the conduct of the business of the 
General Assembly, but that it should be competent for that body to 
supersede any such rules and to -substitute others, which substituted 
rules should not, however, take effect until they had received Your 
Majesty's sanction. 

" We propose that the General Assembly should also have the 
power of making laws for the alteration of the number of delegates, 
or for the improvement in any other respect of its own constitution. 
But we think that no such law should come into operation until it had 
actually been confirmed by Your Majesty. 

" We propose to limit the range of the legislative authority of the 
General Assembly to the ten topics which we proceed to enumerate. 
These are : — 

1. The imposition of duties upon imports and exports. 

2. The conveyance of letters. 

3. The formation of roads, canals, or railways, traversing any 

two or more of such colonies. 

4. The erection and maintenance of beacons and lighthouses. 

5. The imposition of dues or other charges on shipping in every 

port or harbour. 

6. The establishment of a General Supreme Court, to be a Court 

of original jurisdiction or a Court of Appeal for any of the 
inferior Courts of the separate provinces. 

7. The determining of the extent of the jurisdiction, and the 

forms and manner of proceeding of such Supreme Court. 

8. The regulation of weights and measures. 

9. The enactment of laws affecting all the colonies represented 

in the General Assembly, on any subject not specifically 
mentioned in the preceding list, but on which the General 
Assembly should be desired to legislate by addresses for that 
purpose presented to them from the Legislatures of all 
those colonies. 
10. The appropriation to any of the preceding objects of such 
sums as may be necessary, by an equal percentage from the 
revenue received in all the Australian colonies, in virtue of 
any enactments of the General Assembly of Australia. 
" By these means we apprehend that many important objects 
would be accomplished which would otherwise be unattainable, and 
by the qualification which we have proposed, effectual security would, 
we think, be taken against the otherwise danger of establishing a 
central legislature in opposition to the wishes of the separate legis- 
latures, or in such a manner as to induce collisions of authority 
between them. The proceedings also of the Legislative Council of 
New South Wales, with refei-ence to the proposed changes in the 
Constitution, lead us to infer that the necessity of creating some such 
general authority for the Australian colonies begins to be seriously 
felt." 



86 HISTORICAL INTRODUCTION. 

The schedule referred to was as follows : — 

"Each colony to send two members, and each to send one 
additional member for every 15,000 of the population according to 
the latest census before the convening of the House. 

" On the present population the numbers would be as follows : — 





Population by last 


Number of 




Census. 


Members. 


New South Wales 


155,000 


12 


Victoria ... 


33,000 


4 


Van Diemen's Land (de- 






ducting convicts) . . . 


46,000 


5 


South Australia , 


31,000 


4 



265,000 25 

The Australian Colonies Government Bill.^ — This report was 
adopted by the Privy Council, and Earl Grey forwarded it to the 
Governors of the three colonies with a despatch dated 24th May, 
1849, in which he announced that a Bill, passed in strict accordance 
with the recommendations of the Committee, would be introduced 
forthwith into Parliament. This was done ; and the " Bill for the 
Better Government of the Australian Colonies," as first introduced in 
1849, not only provided for the separation of Victoria, and for the 
establishment of a General Assembly on the lines of the report, but 
actually prescribed, and set out in a schedule, a uniform tariff for 
the four colonies of New South Wales, Victoria, Van Diemen's Land, 
and South Australia. 

The colonies, however, did not take kindly to Earl Grey's well- 
meant constitutional schemes and " didactic despatches." The 
Legislature of New South Wales, strangely enough, held its peace 
altogether, after the shelving of the discussion mentioned above. 
But the Legislative Council of South Australia, on 15th December, 
passed a resolution condemning the proposed General Assembly for 
the following reasons : — 

1. There is a great dissimilarity in the pursuits and interests of 

the several provinces. 

2. The overwhelming preponderance that the larger colonies 

would have in the Assembly would be greatly injurious to 
the lesser. 

3. The Council cannot see any point upon which benefit would 

accrue to any of the provinces by the establishment of such 

an Assembly. 
This opinion was endorsed by a public meeting held in Adelaide 
on 21st December to protest against the proposed constitutional 
changes. And from Tasmania Governor Denison, in a despatch of 
28th December, though agreeing that " an absolute and unrestricted 
freedom of intercourse is most advantageous," expressed a fear that 
the proposed uniform tlariff would operate injuriously on the revenue 
of his colony. 

Nor was the reception of the scheme in England more favourable. 
The Parliamentary Agent for New South Wales, Mr. Francis Scott, 
included the proposed General Assembly in a sweeping disparagement 



THE FEDERAL MOVEMENT IX AUSTRALIA. 87 

of the whole scheme (see despatch published in the Sydney Morning 
Herald, 26th Xoverrber, 1850) ; whilst a writer in the Spectator (9th 
May, 1850; reprinted in the Sydney Morning Herald, 30th October) 
waxed sarcastic over the presumption of Downing-street in venturing 
to frame a tariff to suit all the Australian colonies. The Bill was 
dropped for the session; and in a despatch of 18th August, 1850, 
Earl Grey wrote that it would be reintroduced as soon as Parliament 
reassembled, but with one important modification. The provision for 
'•' a uniform tariff to be established bj the Act itself, and unalterable 
except by the General Assembly when convoked," would be omitted. 
He emphasized the importance of intercolonial f reetrade, but admitted 
that "enquiry and discussion have rendered it evident that the pro- 
posed uniformity could not be carried into practical effect without a 
variety of subsidiary arrangements which could only be well con- 
sidered and matured on the spot." 

The Bill, therefore, when reintroduced in 1850, did not impose a 
uniform tariff, but merely empowered the General Assembly to frame 
one. The scheme was also modified in other respects. The General 
Assembly was only to take effect as to such colonies as should signify 
their desire for its establishment. And one remarkable addition was 
made to the list of its powers by enabling it to make laws "for selling, 
demising, granting licenses for the occupation of, and otherwise dis- 
. posing of, waste lands of the Crown in the colonies represented in 
such General Assembly, and for appropriation of money to arise from 
the disposition." 

Both in the Commons and in the Lords the federal clauses were 
critically discussed, and the debates are interesting because they show 
a keen appreciation of the importance of the question. Both sides 
of the argument were well represented. On the one hand, the advan- 
tages of uniform legislation were urged; on the other, the measure 
was denounced as "republican," and as a step towards a declaration 
of independence. It was objected that the large colonies would over- 
whelm the small — to meet which argument the basis of representation 
was altered in Committee by increasing the element of equality, at the 
expense of the proportional element ; that is to say, by allowing each 
colony four members, and an additional one for every 20,000 of popu- 
lation. And then it was objected that the small colonies would 
dominate the large. The weightiest arguments against the clauses, 
however, were that they were not asked for, and indeed were pro- 
tested against, by the colonies, and that the scheme was premature. 
Eai'l Grey contended that these objections were met by the provision 
which left each colony free to join the General Assembly or not ; and 
he claimed that within a few years such an Assembly would probably 
be found desirable, though he admitted that it was not likely to be 
established at once. The clauses were carried in Committee in both 
Houses; but the opposition which they had aroused ultimately induced 
the Government to abandon them before the Bill became law. The 
separation of Victoria, and the establishment of the new Constitutions, 
were accordingly effected without any provision for an intercolonial 
legislature. 

Despatch Accompanying Constitution. — When sendinsr out the 



88 HISTORICAL INTRODUCTION. 

new Constitutional Act (13 and 14 Vic. c. 59), Earl Grey wrote as 
follows of the federal clauses : — 

" 24. The clauses giving power for the establishment, under cer- 
tain circumstances, of a General Assembly for two or more of the 
colonies were omitted from the Bill in its progress through the House 
of Lords. This omission was not assented to by Her Majesty's 
Government in consequence of any change of opinion as to the 
importance of the suggestions on this point which are contained in 
the report of the Committee of the Privy Council. But it was found 
on examination that the clauses in question were liable to practical 
objections, to obviate which it would have been necessary to introduce, 
amendments entering into details of legislation which there were no 
means of satisfactorily arranging without further communication with 
the colonies. 

" 25. Her Majesty's Government have been the less reluctant to 
abandon, for the present, this portion of the measure which they pro- 
posed, inasmuch as even in New South Wales it appeared, as far as 
they could collect the opinion which prevails on the subject, not to be 
regarded as of immediate importance, while in the other colonies 
objections had been expressed to the creation of any such authority. 

"26. I am not, however, the less persuaded that the want of 
some such central authority to regulate matters of common importance 
to the Australian colonies will be felt, and probably at a very early 
period ; but when this want is so felt, it will of itself suggest the 
means by which it may be met. The several legislatures will, it is 
true, be unable at once to give the necessary authority to a General 
Assembly, because the legislative power of each is confined of 
necessity within its territorial limits; but if two or more of these 
legislatures should find that there are objects of common interest for 
which it is expedient to create such an authority, they will have it in 
their power, if they can settle the terms of an arrangement for the 
purpose, to pass Acts for giving effect to it, with clauses suspending 
their operation until Parliament shall have supplied the authority that 
is wanting. By such Acts the extent and objects of the powers which 
they are prepared to delegate to such a body might be defined and 
limited with precision, and there can be little doubt that Parliament, 
when applied to in order to give effect to an arrangement so agreed 
upon, would readily consent to do so." (Despatch, 30th August, 
1850; N.S.W. Votes and Proc, 1851, p. 37.) 

Reasons op Failure. — It is matter for regret that this opportu- 
nity was missed of sliding, from the first, into some form of federal 
union; but Earl Grey's scheme was foredoomed to failure. In the 
first place, it was unfortunate in its author. The colonists, struggling 
for self-governing institutions, had many grievances against the 
Colonial Office; and Earl Grey, in particular, had made himself 
intensely unpopular by his well-meant, though injudicious, attempts 
to remodel their institutions. Consequently the merits of this par- 
ticular proposal hardly received due recognition. But apart from 
this, it is probable that the colonies, though recognizing the absti-act 
advantages of a partial union, Avould have rebelled against any con- 
crete proposal that could have been submitted. Each colony was 



THE FEDERAL MOVEMENT IN AUSTRALIA. 89 

chiefly beut on securing absolute power to manage its own affairs, and 
the importance of union was rather future than present. The whole 
ineffectual episode, however, is interesting for two reasons. In the 
first place, it showed that a satisfactory scheme of Australian union 
must be worked out in Australia, not in England. And in the second 
place, the different criticisms made upon the scheme in the different 
colonies afford an instructive parallel with the anti-federal objections 
of our own time, and show that the real difiiculties of the problem 
were inherent from the first. Then, as now, Tasmania was more 
dependent than New South Wales upon a revenue tariff. Then, as 
now. New South Wales claimed predominance, and the smaller 
colonies feared being swallowed up. By constructing the General 
Assembly on a basis intermediate between equal representation and 
proportional representation. Earl Grey had done the best he could with 
a single Chamber ; but to be effectual, each basis required a separate 
Chamber, and probably a two-chambered Federal Legislature would 
have been out of the question at that time. The Home Government 
can hardly be blamed for deciding that the problem was one which 
they could not solve, but which the colonies must be left to work out 
for themselves. 

The Governor-General. — Earl Grey, however, did not give up 
his federal idea altogether. The establishment of a Federal Legisla- 
ture was unavoidably postponed; but something like a Federal 
Executive could be created without statutory authority. Accordingly 
Earl Grey sent out to Sir Charles Fitzroy, the Governor of New South 
Wales, four separate Commissions appointing him Governor of New 
South Wales, Van Diemen's Land, South Australia, and Victoria 
respectively ; and also another Commission appointing him "Governor- 
General of all Her Majesty's Australian possessions, including the 
colony of Western Australia." The Queen's representatives in the 
three colonies of Van Diemen's Land, South Australia, and Victoria 
were given the title of " Lieutenant-Governors " (Jeuks' Govern- 
ment of Victoria, p. 155). In an accompanying despatch, dated 3rd 
January, 1851, it was explained that the Governor-General was not 
expected to interfere with matters affecting merely the internal 
administration of the other colonies. But the expanding interests 
and increasing relations of the colonies with each other would require 
concert on a variety of subjects, and the Governor of the mother 
colony ought to have a general authority to superintend the initiation 
and foster the completion of measures calculated to promote the 
common welfare. The Lieutenant-Governors would be instructed to 
communicate with the Governor-General as to all measures affecting 
intercolonial interests, and to be guided by his judgment on all such 
matters. Especially, as the relations of Victoria with Xew South 
W ales would necessarily be intimate, there should be no alteration of 
the import duties of either colony without previous communication 
between them. If any necessity should arise for the Governor- 
General to visit any of the colonies of Van Diemen's Land, South 
Australia, or Victoria, he would, by virtue of his commission as 
Governor of such colony, supersede the Lieutenant-Governor, and 
assume the Govei'nment during his stay (Pari. Papers, 1851, xxxv., 40). 



90 HISTORICAL INTRODUCTION. 

The Governor of New South Wales was thus constituted a sort 
of advisory over-lord of the whole of Australia ; and was also 
empowered in an emergency to exercise the functions of Governor of 
any of the three colonies of Van Diemen's Land, South Australia 
and Victoria. In other words, a kind of Federal Executive was, in 
name at least, actually constituted. But without a Federal Legisla- 
ture the Governor-Generalship was little more than an empty title. 
The visiting power was never used at all — and indeed was never 
meant to be used except in some unforeseen emergency. When Sir 
Charles Fitzroy's term ended, the system of giving the Governor of 
New South Wales separate Commissions as Governor of the other 
colonies was dropped, and the Lieutenant-Governors were raised to 
the rank of full-blown Governors. The title of Governor-General 
continued to be borne by the Governor of New South Wales until the 
Governorship of Sir John Young in 1861, but it seems to have had 
little practical value. The only notable occasion on which the 
Governor-General concerned himself with intercolonial interests was 
when Sir W. Denison (then Governor of New South Wales) 
endeavoured in 1855 to secure harmony between the tariffs of New 
South Wales and Victoria. Shortly afterwards responsible govern- 
ment was inaugurated in both colonies, and the Commission of 
Governor-General fell into disuse. Its last shred of utility was, of 
course, gone when the several Governors ceased to have active 
control of the administration. 



(.3) THE CONSTITUTIONAL COMMITTEES OF 1853. 



Meanwhile suggestions for federal union had come from states- 
men in both New South Wales and Victoria. The colonists had been 
deeply disappointed with the Constitutions of 1850 (13 and 14 Vic. 
c. 59), and continued to agitate for the grant of responsible govern- 
ment similar to that which had been conceded to the Canadian 
provinces between 1841 and 1848. The Legislatures began by 
" Remonstrances," but soon proceeded to the more practical work of 
framing the desired Constitutions for themselves, according to the 
powers recently conferred on them. 

Wentworth's Constitutional Committee. — In New South Wales, 
a Select Committee of the Legislative Council was appointed in 1853, 
on Wentworth's motion, to prepare a new Constitution. On 28th 
July it brought up its report, with a draft Constitution Bill annexed. 
The Bill itself contained no federal provision ; but the report 
concluded with the following recommendation: — 

" One of the more prominent legislative measures required by 
this colony, and the colonies of the Australian group generally, is the 
establishment at once of a General Assembly, to make laws in relation 
to the intercolonial questions that have arisen, or may hereafter arise, 
among them. The questions which would claim the exercise of such 
a jurisdiction appear to be as follows : — • 



THE FEDERAL MOVEMENT IN AUSTRALIA. 91 

1. Intercolonial tariffs^ and coasting trade. 

2. Railways, roads, canals, &c., running through any two of the 

colonies. 

3. Beacons and lighthouses on the coast. 

4. Intercolonial penal settlements. 

5. Intercolonial gold regulations. 

6. Postage between the said colonies. 

7. A general Court of Appeal from the courts of such colonies. 

8. A power to legislate on all other subjects which may be 

submitted to them by addresses from the Legislative 
Councils and Assemblies of the other colonies; and to 
appropriate to any of the above objects the necessary sums 
of money, to be raised by a percentage on the revenues of 
all the colonies interested. 
" As it might excite jealousy if a jurisdiction of this importance 
were to be incorporated in the Act of Parliament, which has unavoid- 
ably become a necessary part of the measures for conferring a 
Constitution on this colony, in consequence of the defective powers 
given by Parliament to the Legislative Council, your Committee 
confine themselves to the suggestion that the establishment of such a 
body has become indispensable, and ought no longer to be delayed ; 
and to the expression of a hope that the Minister for the Colonies 
will at once see the expediency of introducing into Parliament, with 
as little delay as possible, a Bill for this express object." 

In this suggestion nothing was definite except the list of federal 
subjects. There was no hint of an opinion as to the shape which the 
Assembly ought to take ; and we must suppose either that the 
Committee had not considered the matter, or that they were satisfied 
with the scheme already proposed by the Home Government. One 
thing is clear; however, that Wentworth himself did not at that time 
contemplate a real national unity for Australia, or indeed anything 
more than a General Assembly to secure uniform legislation on a few 
matters of common interest. In the course of the debate on the 
Constitution, he took occasion to ridicule the scheme propounded by 
Dr. Lang of a " great federation of all the colonies of Australia, of 
New South Wales, Victoria, Tasmania, and South Australia ; each 
State to have a separate local government and sending members to 
Congress to form a great central government." These. words, accord- 
ing to the report, were greeted by the House with "shouts of 
laughter" — directed in part, no doubt, at Dr. Lang's republican 
ideas of " cutting the painter." An elaborate scheme of Federation 
would cei-tainly have been premature; but to a prophetic eye it need 
have had nothing of the ridiculous. 

Victorian Constitutional Committee. — ^The Committee appointed 
in Victoria in September, 1853, to draft a new Constitution for that 
colony, also dealt with the question, but in an even vaguer wav. Its 
report contained these passages : — 

" From the great extent of Australia, and the widely differing 
circumstances of its several colonies, your Committee do not think 
it essential for local legislation that uniformity of institutions should 



92 HISTORICAL INTRODUCTION. 



prevail. They have followed, as far as principle permitted, the Bills 
proposed in New South Wales and South Australia. . . . 

" But they do feel most strongly that there are questions of such 
vital intercolonial interest that provision should be made for occasion- 
ally convoking a General Assembly for legislating on such questions 
as may be submitted to it by the Act of any Legislature of one of the 
Australian colonies." 

This report was dated 9th December, 1853, when the report of 
Wentworth's Committee had been available for some five months; 
but in place of Wentworth's list of eight subjects, it only proposed to 
give the General Assembly power to legislate on questions " submitted 
to it " by the legislatures. 

Lord John Russell's Reply. — The Home Government, however, 
in enacting the Constitutions, did not think proper to make any pro- 
vision for a General Assembly. The Constitution Acts (18 and 19 
Vic. c. 54 and c. 55) were passed in 1855, and in the despatch accom- 
panying them to Australia Lord John Russell, then Secretary of State 
for the Colonies in Lord Palmerston's Ministry, wrote : — " I need 
scarcely say that the question of introducing into the measures lately 
laid before Parliament clauses to establish a federal union of the 
Australian colonies for purposes of common interest has been very 
seriously weighed by Her Majesty's Government; but they have been 
led to the conclusion that the present is not a proper opportunity for 
such enactment, although they will give the fullest consideration to 
any propositions on the subject which may emanate in concurrence 
from the respective legislatures." 

There is no reason to suppose that Lord John Russell had changed 
his opinion as to the desirableness of a federal union; but Earl Grey's 
adventures had taught him that devising colonial constitutions, even 
with the best intentions in the world, was thankless work for an 
English statesman. Two of the Australian colonies had expressed 
opinions in favour of a General Assembly, but there had been no con- 
currence — and indeed no conference — on the subject between the 
colonies, and no definite scheme was before him. The colonies had, 
by dint of much remonstrance, obtained recognition of the right to 
frame their own constitutions; and the Home Government naturally 
preferred to await more definite propositions. 



(4) AUSTRALIAN EFFORTS, 1854-1863. 



In its next stage the movement began to take a more definite 
shape. Already in 1852 Dr. Lang had propounded an elaborate 
scheme of federation on the American plan ("Freedom and Indepen- 
dence for the Golden Land.s of Australia ") ; but his bellicose tone and 
his clamour for separation from the mother-country robbed him of 
influence. In 1854 a series of thoughtful letters in the Sydney Morn- 
ing Herald, over the signature of " John Adams," dealt convincingly 
with the need of union, and discussed many of the details. The 
writer of these letters was the Rev. John West, then residing in Tas- 



THE FEDERAL MOVEMENT IN AUSTRALIA. 93 

mania, but afterwards editor of tlie Sydney Morning Herald. Two 
years later the Herald returned to the theme, discussed the difficulties 
and the advantages, and recommended that the Home Government 
should take action by passing a law enabling the colonies to establish 
a federation. (Leading article, 23rd October, 1856. In Wentworth's 
Memorial the article is wrongly attributed to the Melbourne Argxis.) 
And in the following week, on 29th October, 1856, Deas-Thomson, 
who had for many years been Colonial Secretary under the old official 
system, and who then represented the Parker Government in the 
Upper House, spoke hopefully in the House of the near probability 
of some federal arrangement. There were seven great questions, he 
said, which ought to be submitted to a representative Federal 
Assembly ; namely, a uniform tariff, the land system, the management 
of the goldfields, postal communication, intercolonial railways, inter- 
colonial telegraphs, and coast lighthouses. 

Wextworth's Memorial. — These hints were not lost upon Went- 
worth, who was then living in England, and whose farewell words 
when leaving Australia in 1854 had been; — " Whatever may be my 
destiny, believe me that my latest prayer shall be for the happiness 
and prosperity of the people of Australia, and for its rapid expansion 
into a nation, which shall rule supreme in the southern world." 
{Sydney Morning Herald, 21st Mai'ch, 1854.) He lost no time in 
showing not only that these words were sincere, but that his convic- 
tions of the importance of Australian union were deepening. He pre- 
pared a Memorial to Mr. Henr)-^ Labouchere, Secretary of State for 
the Colonies, and also the draft of a short Enabling Bill; and at a 
meeting of the " General Association for the Australian Colonies," held 
in London on 31st March, 1857, with Went worth himself in the chair, 
the Memorial and the Draft Bill were adopted. For the Memorial 
and correspondence see Votes and Proc, Leg. Ass. of X.S.W., 1857, 
i. 383. 

The Memorial emphasized the need of a Federal Assembly, and 
the inconvenience resulting from the want of it, and illustrated the 
" clumsy contrivances " that had to be resorted to where intercolonial 
action was necessary. It was " not to be wondered at that a strong 
feeling of discontent should be growing up among the inhabitants of 
these colonies ; from their being compelled to resort to such indirect, 
tedious, and illegal expedients in substitution of that federal authority 
without which their several Constitutions must continue incomplete 
as regards all measures and undertakings which require the joint 
action and co-operation of any two or more of them." It referred to 
Earl Grey's scheme, to the report of the Constitutional Committee, to 
Deas-Tliomson's recent speech, and to other indications of opinion, 
and besought the Government to anticipate graver inconveniences by 
taking action at one. A Federal Assembly could only originate in an 
Imperial Act of Parliament, which might either constitute such a 
body directly, or give to the Legislatures of any two or more colonies 
a permissive power to form a federation themselves. The latter 
course — the passing of a permissive Act — was what the Memorialists 
thought " the most desirable, if not the only course which can now be 
adopted." They expressed the opinion that " a complete equality of 



94 HISTORICAL INTRODUCTION. 

representation, as between all the Australian colonies, should be 
insisted upon, without reference to the extent of their population." 
They also suggested that to prevent jealousy the Federal Assembly 
might, in the first instance, be " perambulatory." 

The Bill which was subjoined, and which contained only five 
short clauses, was merely an " Enabling Bill," with a few constitutional 
outlines thrown in. It empowered any two or more of the Legislatures 
of JSTew South Wales, Victoria, South Australia, and Tasmania, to 
send four persons to form a Convention " for the purpose of creating 
a Federal Assembly." The only rules laid down by the Act for the 
constitution of the Assembly were — (1) that when created it should 
have power to amend its OAvn constitution ; (2) the extent of its legis- 
lative powers was defined, practically on the basis of Deas-Thomson^s 
speech; (3) the Federal Assembly should be summoned by the 
Governor-Greneral (or Senior Governor), audits Acts were to be subject 
to the Royal assent ; (4) the Federal Assembly was to appoint its own 
president, and fix its own expenses and the salaries of its officers; 
(5) the necessary expenses, were to be apportioned by the Federal 
Assembly among the several colonies, and were to be provided for by 
the several Legislatures; (6) any colony which did not join at the 
outset might afterwards join the Federation, and have the right of 
sending the same number of representatives as should be fixed for all 
the other colonies. 

It is to be noticed that this Bill, whilst it provided for equal 
representation in the preliminary Convention, did not expressly bind 
the Convention to establish equal representation in the Federal 
Assembly ; though the provision as to the representation of colonies 
which might afterAvards join seemed to contemplate equal representa- 
tion. It is also to be noticed that the Convention was empowered 
actually to establish a Federal Assembly, without further reference 
to the Imperial Parliament ; and in the constitution of that Assembly 
it was to have a free hand, subject only to the conditions already 
mentioned. The use of the term " Federal Assembly " in place of 
" General Assembly " marks a distinct stage in advance, as showing 
that the national aspect was becoming more prominent. The scope 
of the legislative power of the Assembly was also enlarged, being 
defined to extend to tariffs, lighthouses, gauges of connecting rail- 
ways, navigation of connecting rivers, intercolonial telegraphs and 
postage, the upset or minimum price of land, management of the gold- 
fields, coinage, weights and measures, defence, a court of appeal, 
penal settlements, and any other matter which might be submitted to 
it. On the other hand it was not to have any power of raising 
revenue for itself, but was to rely on contributions levied from the 
Legislatures of the colonies. 

This notable scheme met with a discouraging reception from 
Labouchere, who, in acknowledging the Memorial, admitted the 
inconvenience arising from the want of means of joint action, but said 
that after weighing the reasons for and against the scheme, he had 
"arrived at the decided opinion that Her Majesty's Government 
would not in reality promote the object of the Memorialists by intro- 
ducing such a measure as that of which the outlines are given in the 



THE FEDERAL MOVEMENT IN AUSTRALIA. 95 

Memorial, notwitLstandiug its purely permissive character."' He 
thought that the colonies would uot consent to entrust such large 
powers to an Assembly thus constituted, or to be bound by federal 
laws imposing taxation or involving appropriation ; and even if they 
did consent to establish such a system, the result would probably be 
dissension and discontent. He would not think himself warranted in 
making such a proposal — merely permissive though it was — unless he 
were himself satisfied that it was founded on just and constitutional 
principles, and also that it was likely to be acceptable to the colonies 
concerned. He promised, however, to send copies of the correspon- 
dence to the several Governors, and to give his best attention to any 
suggestion which he might receive from the colonies in reply ; and 
meantime he hoped that even if a federal scheme should prove 
impracticable and premature, much might be done by negotiation and 
concerted legislation. 

Under the circumstances, Wentworth could do nothing but express 
his regret at the delay which the reference to the Governors would 
cause, and his hope that the reference would be made as soon as 
possible, that the opinions of the several Legislatures might be 
obtained. 

Disappointing as Labouchere's decision may have seemed, the 
justness of his criticisms can to-day hardly be disputed. There were 
very slight indications that the colonies asked for a General Assembly 
at all — merely the reports of a couple of committees, the opinions of 
one or two statesmen, and some newspaper extracts. And there were 
no indications at all that the basis outlined in the Bill had any 
sanction from Australia. Nor is it certain that the colonies would 
have taken advantage of the Act if passed. In view of the extent to 
which colonial rights of self-government had already been conceded, 
postponement for further consideration by the colonies was no more 
than prudent. 

ViCTORiAX Select Committee. — Meanwhile the question of union 
was already being considered in Australia. In Jaiiuary, 1857, Mr. 
(afterwards Sir) Charles Gavan Duffy, who had recently arrived in 
Victoria, obtained the appointment of a Select Committee of the Legis- 
lative Assembly of that colony "to enquire into and report npon the 
necessity of a federal union of the Australasian colonies for legislative 
purposes, and the best means of accomplishing such an union if 
necessary." The Committee held five sittings, at only two of which 
a quorum was obtained — either from a want of interest in the ques- 
tion, or perhaps, as Mr. Rusden suggests in his History of Australia, 
from a suspicion that Mr. Duffy, like Dr. Lang, was aiming at a 
separation from the mother-country. Its report, which is a most 
interesting one, was not brought up till September. The Committee 
were unanimous as to the ultimate necessity of a federal union. As 
to the time of accomplishing it they differed; but they were aU 
agreed that it was "not too soon to invite a mutual understanding on 
the subject," and they added that " most of us conceive that the time 
for union is come." 

On the best means of originating the union they were also 
unanimous. No single colony ought to dictate the programme of 



96 H[STORTCAL INTRODUCTION. 

union ; the delicate and important questions involved could be solved 
only by a conference of delegates from all the colonies. The course 
they recommended, therefore, was " that such a Conference be imme- 
diately invited." As to the form which the union should take, they 
expressed no opinion at all ; but they went on to state, in the form of 
queries, some of the questions which the Conference would have to 
face : whether there should be " merely a Consultative Council 
authorized to frame propositions for the sanction of the State Legis- 
latures, or a Federal Executive and Assembly with supreme power on 
national and intercolonial questions, or some compromise between 
these extremes;" whether the Federal Legislature should consist of 
one or two branches ; whether it was to have the power of taxation, 
or only of assessment on the several states ; where the federal body 
should sit, or whether it should be rotatory, and so forth. 

With regard to the Conference, they recommended specifically 
that each Legislature should send three delegates, two of whom might 
be members of Assembly and one member of Council ; and that the 
Conference be empowered to frame a plan of federation to be after- 
wards submitted for approval, either to the Legislatures or directly 
to the people, or to both, and to receive final legislative sanction. 
The report concluded with the remark — apparently aimed at Went- 
worth^s Memorial — that "your Committee are fully convinced that a 
negotiation demanding so much caution and forbearance, so much 
foresight and experience, must originate in the mutual action of the 
colonies, and cannot safely be relegated even to the Imperial 
Legislature." 

The recommendations of the Committee were shortly afterwards 
adopted by both Houses of the Victorian Parliament, and were trans- 
mitted to the other colonies. 

New South Wales Select Committee. — In August of the same 
year (1857) Deas-Thomson had obtained a Select Committee of the 
Legislative Council of New South Wales, " to consider and report on 
the expediency of establishing a Federal Legislature invested with 
the necessary power to discuss and determine all questions of an 
intercolonial character arising in the Australian colonies generally, 
and to suggest the manner in which the object can be best obtained." 
This Committee began their proceedings by agreeing that it was 
expedient to establisla a Federal Assembly, and then went on to sketch 
out a scheme. They had before them Wentworth^s Memorial, and 
followed in the main his suggestions. The initiative was taken by Sir 
W. W. Burton, an ex- judge of the Supreme Court, on whose motion 
it was resolved that the Federal Assembly should consist of delegates 
chosen by the several Legislatures ; that each colony should be repre- 
sented by an equal number of delegates, namely, four; and that the 
Assembly should have power to legislate on all intercolonial subjects 
which might be submitted to it hy the Legislatures of two or more 
colonies interested, ''and on no other subject.^' This last was the 
only substantial point on which the Committee's scheme differed from 
Wentworth's. Deas-Thomson then brought up a series of resolutions 
taken almost bodily from Wentworth's Bill — to which the Committee 
acknowledged their obligations — and these were carried. The Cora- 



THE FEDERAL MOVEMENT IN AUSTRALIA. 97 

mittee had evidently intended to embody this scheme in their report ; 
but at this stage they received the report of the Victorian Select Com- 
mittee, and determined to fall into line with it. 

Their report, which was brought up in October, stated that the 
Committee had become forcibly impressed with the expediency of 
adopting some comprehensive measure for a Federal Assembly at as 
early a date as possible. They recognized the difficulties of suggesting 
a measure acceptable to all the colonies, but conceiyed that these 
difficulties would rather increase than diminish with delay. They 
were confident that when the advantages were considered, there would 
be such a concurrence of opinion as would lead to the adoption of 
some safe and practicable measure. They had no hesitation in 
recommending immediate action, in the firm belief that the Federal 
Union of the Australian colonies would contribute more effectually to 
their general prosperity and advancement than any other measure 
that could be devised. 

They pointed out that the matter could not be definitely settled 
without Imperial legislation, " to which there would, of course, be no 
objection if the general principles of the measure were previously 
agreed upon" — a phrase which indicates their acquiescence in Labou- 
chere's reply to Wentworth. They also referred to that reply "as 
establishing the fact that no measure providing for federal union will 
be adopted unless initiated and recommended by the colonies them- 
selves." 

They heartily endorsed the Victorian proposition of a Conference, 
which they unanimously recommended to the House. They explained 
that before receiving the Victorian report they had made some pro- 
gress in drawing up the outlines of a scheme, and they referred to 
these proceedings, not with the intention of dictating their views, but 
in the hope of assisting the delegates, if appointed. 

Finally, they expressed a decided opinion that the matter could 
no longer be postponed without the danger of creating serious 
antagonism and jealousy, which would embarrass, if not entirely 
prevent, its future settlement on a satisfactory basis. Accordingly, 
they urged that the concurrence of the Assembly be invited, and 
further steps taken without delay. 

The Committee were evidently in earnest; and had they been 
well backed up, union might have been achieved. Unfortunately, 
however, other influences were at work. During the deliberations of 
the Committee, the Parker Government, of which Deas-Tliomson was 
a member, had been replaced by the Cowper administration, with Mr. 
(afterwards Sir) James Martin as Attorney-General and the dominat- 
ing personality of the Cabinet. Neither Cowper nor Martin cared 
anything for federal union ; and the colony, in the exercise of newly- 
won responsible government, was engrossed in such questions as the 
franchise, the reform of the Upper House, and the land question. 
Moreover the rivalry between New South Wales and Victoria was 
already leading to jealousy and bad feeling. The stream of immigra- 
tion to the goldfields had suddenly given Victoria the lead in 
population; and Duffy's overtures were received with suspicion, as 
part of a scheme of Victorian aggrandisement. Deas-Thomson 



7 



98 HTSTORTCAL INTRODUCTIOK 

succeeded in securing the adoption of his report by the Council^ which 
then sent a message to the Assembly, asking its concurrence in joint 
resolutions. Joint resolutions, based on the Victorian recommenda- 
tions, were agreed to in conference, and their consideration by the 
Assembly was fixed for 18th December; but on 17th December the 
Cowper Government was defeated on a Crown Lands Bill, and a 
dissolution followed. On the reassembling of Parliament in March, 
1858, the federal question was shelved. The Governor's speech 
announced that '' the question of a Federal Legislature is still under 
discussion by the Legislatures of the neighbouring colonies, but I am 
of opinion that the consideration of this subject may, without incon- 
venience, be deferred to future consideration." This announcement 
was received without protest. In the Address-in-Reply, the Assembly 
agreed that the discussion "may, under existing circumstances, be 
deferred/' whilst the Council resolved more emphatically that it 
^'must, under existing circumstances, be deferred.^' No hint was 
given of what the "circumstances" were; but they doubtless com- 
prised suspicion of Victoria, and an engrossing interest in domestic 
legislation. Deas-Thomson seems to have resigned himself to the 
inevitable. 

South Australian Select Committees. — In South Australia, Select 
Committees of each House were appointed in 1857 to consider the 
question of federal union, and in November they brought up reports 
couched in identical terms. They were of opinion that under existing 
circumstances the formation of a Federal Legislature would be pre- 
mature, but that nevertheless there were so many topics in which the 
colonies had a common interest, and in which uniform legislation 
would be desirable, that it was expedient to adopt some measures to 
secure these objects. They mentioned, as subjects which might be 
added to Wentworth's list, the following : — Patents and copyrights, 
law of insolvency, professional qualifications, uniform time of meeting 
of Parliaments. With a view to the discussion of the question, they 
adopted the Victorian suggestion that a Conference should be held; 
but they recommended that it should not be authorized to bind the 
Legislature, but only to discuss and report. These recommendations 
were adopted by both houses, and delegates were appointed to repre- 
sent South Australia at any Conference which might be held. 

Other Proceedings. — Notwithstanding the backwardness of New 
South Wales, Mr. Duffy kept up his exertions, and in December, 1857, 
obtained a second Select Committee of the Victorian Assembly, which 
in the following February brought up a progress report, urging 
that delegates should be appointed to meet the delegates from other 
colonies. This report was adopted by both Houses. Shortly after- 
wards the Tasmanian Parliament took the question up. The House 
of Assembly resolved " That in the event of the Conference of dele- 
gates from the Australian colonies assembling previously to the next 
meeting of Parliament, it will be expedient that this colony should be 
represented at such Conference." The Council concurred, and dele- 
gates were appointed, to act in such capacity only until the next 
session. 

In January, 1860, Mr. Duffy obtained a third Select Committee, 



THE FEDERAL MOVEMENT IN AUSTRALIA. 99 

which in February brought up a progress report recommending a 
renewal of negotiations with New South Wales, South Australia, and 
Tasmania, for a Conference on the subject of Federal Union. It was 
pointed out that the two latter colonies, when a Conference was first 
proposed, had promptly acceded; and " though an objection originated 
with Xew South Wales Avhich retarded any joint action," there was 
reason to believe that it was of a temporary nature, and had dis- 
appeared before the urgency with which the question was invested by 
the necessity of a united defence of Australia in case of war. The 
disappearance of the " temporary objection " in New South Wales is 
presumably an allusion to the downfall of the Cowper Ministry ; and 
Mr. Duffy's renewed invitation seems to have been inspired by the 
hope that Mr. William Forster, the new Premier of Xew South Wales, 
would be more favourable. But he was once more disappointed. The 
resolutions were forwarded to the other colonies, and the Governments 
of South Australia and Tasmania promised to give the matter atten- 
tion. But Xew South Wales took no steps whatever. Dr. Lang, 
indeed, in the Legislative Assembly, obtained Select Committees in 
two consecutive sessions to consider the question ; but though the 
Committees met and deliberated, no report was brought up. 

Ql'eexslaxd. — In 1859 the Moreton Bay district was severed from 
New South Wales and became the new colony of Queensland. The 
Victorian Government accordingh^ included Queensland in their last 
invitation. The Colonial Secretary of that colony, Mr. (afterwards 
Sir) R. G. W. Herbert, in reply, stated that his Executive Council 
approved of the Conference, as a means of ascertaining the views of 
the colonies, and determining how far a federal union would be either 
practicable or expedient. On both these points the Council, with the 
information before them, entertained serious doubts. Without wishing 
to prejudge the question, they saw grave obstacles to the creation of 
a central authority which might " tend to limit the complete indepen- 
dence of the scattered communities peopling this continent," or inter- 
fere with their direct relations with the mother-country. At the same 
time, they were alive to the importance of uniform legislation on 
certain subjects, and were willing to discuss the matter in Conference. 
Queensland, in short, was not enamoured of the federal idea. 
She was enjoying her new isolation, and looked on federation as a 
kind of re-annexation. " Complete independence " was her ideal for 
the moment. 

Failuke of Federal Proposals. — For the time, therefore, the 
project of a federal union failed. That there was no Conference on the 
subject was due to the backwardness of Xew South Wales ; but even 
had a Conference been held, it is more than doubtful whether there 
would have been any practical result. In no colony was there any 
general enthusiasm, or even interest, in the subject; though in all 
there were a few far-siofhted statesmen who recosrnized the essential 
unity of Australia. Even in Victoria, whose statesmen showed the 
most eagerness for union, there was nothing approaching a real 
federal movement. Local politics, and the development of local 
institutions, engrossed the attention of the people; and probably no 
colony would have been prepared to accept the compromises and the 



100 HISTORICAL INTRODUCTION. 

partial sacrifice of local independence which a federal union would 
have involved. The best justification of the inaction of the Imperial 
Grovernment is the want of interest shown by the colonies themselves. 



(5) THE TARIFF QUESTION, 1855-1880. 

Though Federation proved unattainable for the time, continued 
efforts were made to mitigate the evils arising from conflicting tariffs 
and intercolonial duties. These constituted the chief practical incon- 
venience of disunion; and there were many attempts to establish 
border treaties, commercial reciprocity, intercolonial freetrade, or 
customs unions. To take up the story of these it is necessary to go 
back a few years. 

Tariff Differences. — We have seen (p. 79, supra) how the 
tariffs of the colonies drifted apart from the first. In August, 1852, 
shortly after the separation of Victoria, Deas-Thomson succeeded in 
greatly simplifying the tariff of New South Wales by restricting it to 
a very few articles — chiefly stimulants, narcotics, tea, coffee, and 
sugar. In the same month an almost identical tariff was established 
in Victoria. South Australia and Tasmania, however, retained longer 
lists of dutiable articles; and so early as 1854 Victoria began to 
increase her duties. Deas-Thomson, however, still hoped to see 
uniformity established ; and in September, 1855 — on the eve of the 
establishment of Responsible Government — the Governor-General, Sir 
W. Denison (presumably at Deas-Thomson's suggestion), sent a 
message to the Legislative Council recommending the assimilation of 
the New South Wales tariff to that of Victoria. (Notes and Proc, 
Leg. Ass. of N.S.W., 1855, i. 233.) He pointed out the objections 
which existed to the maintenance of custom-houses on the Murray 
border, and to differences between the tariffs of the two colonies. At 
the time of separation an attempt had been made to provide against 
these difficulties by creating a General Assembly; but this attempt 
had failed. The result had been the adoption of different tariffs in the 
two colonies, and as a corollary the establishment of custom-houses on 
the common border. That system, if continued, would lead to great 
annoyance; and he had suggested to Sir Charles Hotham, the 
Governor of Victoria, that it would be desirable for the Governments 
of the two colonies to agree not to levy any duties on goods passing 
by land from one colony to the other. The difference between the 
tariffs of the two colonies would, however, throw difficulties in the 
way of such an agreement; and seeing that the state of the revenue 
in New South Wales required a revision of the tariff, he suggested 
that it was a favourable opportunity to bring the two tariffs into 
harmony by adopting the Victorian tariff. In his letter to Sir Charles 
Hotham, Sir William Denison expressed his expectation that, when 
uniformity was once secured, future modifications of the respective 
tariffs would be discussed between the two Governments. 

The Council, however, did not altogether accept this advice, and 
modified the Governor-General's tariff; but the tariff as finally 
adopted was still a rough approximation to that of Victoria. 



THE FEDERAL MOVEMENT IN AUSTRALIA. 101 

Murray Ccstoms Treaties. — Two kinds of traffic had to be dealt 
with in connection with the collection of customs on the Murray. 
First, there was the traffic across the river between the colonies of 
New South Wales and Victoria. Then there was the traffic up and 
down the river, which, when the navigability of the Murray had once 
been established, soon became considerable, and which involved the 
three colonies of New South Wales, Victoria, and South Australia. 
Immediately after the adoption of the Xew South Wales tariff of 1855, 
an asrreement was made between the Governments of Xew South 
Wales, Victoria, and South Australia, that no duties should be collected 
on goods crossing the Murray, and that duties on goods carried up the 
Murray from South Australia, for consumption in New South Wales 
or Victoria, should be collected by the South Australian Government 
according to the South Australian tariff, the proceeds being divided 
equally between New South Wales and Victoria. These arrangements 
were validated by statute in each colony. (In Victoria, by the 
Customs Regulation Act, 1854, 17 Vic. No. 17 ; in New South Wales 
by the Murray Customs Duties Act, 1855, 19 Vic. No. 21; in South 
Australia by the Murray Customs Act, 1856, No. 6.) Accordingly, on 
1st November, 1855, trade between New South Wales and Victoria, 
across the river Murray, became fi*ee. At that time the balance of 
trade was with New South Wales, and the freedom of the Murray was 
conceded by Victoria at the request of New South Wales. Dissatis- 
faction, however, soon arose. New South Wales complained that by 
the adoption of the South Australian tariff on Murray-borne goods 
she was losing revenue — especially on tobacco. Victoria complained 
that equal distribution of the duties collected by South Australia was 
not fair, seeing that most of the Murray-borne goods were for con- 
sumption in Victoria. In 1857, after much correspondence (Votes 
and Proc, LA. of N.S.W., 1862, ii. 647), during which an assimilation 
of tariffs was unsuccessfully mooted, a new arrangement was made, by 
which the New South Wales tariff was adopted as that which the 
Government of South Australia should levy on Murray-borne goods. 
This arrangement was sanctioned in New South Wales by the Eiver 
Murray Customs Act, 1857, and in South Australia by the Murray 
Customs Act, 1857, No. 2, and remained in force until 1864. 

Uniform Tariff Proposals. — In March, 1862, the Colonial Secre- 
tary of South Australia opened a correspondence with the other 
colonies on the subject of the desirability of a uniform tariff in all the 
colonies. (Votes and Proc, Leg. Ass. of N.S.W., 1862, ii. 647.) He 
expressed the opinion that, until the means of communication im- 
proved, complete Federation would be impossible. Meanwhile, as one 
step towards union, his Government intended to seek legislative 
authority for admitting free of duty the produce of any colony which 
made a reciprocal concession ; and he suggested an intercolonial Con- 
ference at Melbourne to consider the question of a uniform tariff. The 
proposal was favourably received. Mr. Duffy, still intent on a Federal 
Union, promptly obtained a fourth Select Committee, which brought 
up a report urging that the Conference on a uniform tariff would 
afford a favourable opportunity to consider the larger question of 
Australian Federation. This report was adopted by both Houses of 



102 HISTORICAL INTRODUCTION. 

the Victorian Parliament, but met with no response from the other 
colonies. The Conference, after some delay, met at Melbourne in 
March, 1863, being attended by three delegates from each of the 
colonies of New South Wales, Victoria, South Australia, and Tasmania. 
The subject of Federation was not considered at all ; the Conference 
reporting that " although the question has, during some years, 
occupied the attention of several of the Legislatures, the delegates 
had no instructions in the matter, and it did not seem probable that 
its discussion at present would be attended with any benefit." Several 
subjects of intercolonial administration and legislation were dealt 
with ; but the most important part of the business was the discussion 
of the question of a uniform tariff, intercolonial freetrade, and the fair 
distribution of the customs duties. 

The Conference resolved that it was " desirable to settle the basis 
of a uniform tariff for the Australian colonies, and also for Tasmania." 
They agreed that the ad valorem mode of levying duties was open to 
so many objections that it ought not to be resorted to ; and they 
framed a tariff, the adoption of which they undertook to urge upon 
their respective Parliaments. They also gave it as their opinion that 
the tariff which had been agreed upon, after the fullest deliberation, 
ought not to be altered by any one colony, nor without consideration 
at a future Conference. 

Then came the question of intercolonial duties and their distribu- 
tion. On this point the Conference resolved that " customs duties 
ought to be paid to the revenues of those colonies by whose population 
the dutiable articles were consumed." The strict fulfilment of this 
would have involved the maintenance of the objectionable border 
custom-houses; so they added a resolution to the effect that the 
colonies of New South Wales, Victoria, and South Australia ought to 
co-operate to secure to each the revenue to which it was legally 
entitled, either by distribution of the revenue in proportion to popula- 
tion, or by some other mode which might be considered equitable and 
practicable. 

New South Wales and Victoria, however, failed to agree on any 
^'equitable mode" of distributing the revenue. Cowper, for New South 
Wales, offered to accept any one of three methods: either (1) divi- 
sion according to population; or (2) keeping entries of border imports 
and making periodical settlements between the Governments; or (3) 
payment of a fixed annual sum to New South Wales, estimated on the 
excess of revenue lost by New South Wales, as compared with Vic- 
toria, by the freedom of the border. None of these propositions, 
however, satisfied the Victorian Premier, Mr. (afterwards Sir) James 
McCulloch, who " failed to discover any equitable grounds for disturb- 
ing the existing arrangement entered into at the instance of the 
Government of New South Wales." The "existing arrangement" 
was the freedom of the border without any adjustment of accounts. 
This did not suit New South Wales. The claim of that colony to 
receive the revenue on imports consumed in the colony arose from the 
fact that the balance of intercolonial trade was at that time with 
Victoria. As Victoria definitely rejected all the' terms proposed, the 
New South Wales Government put an end to the " existing arrange- 



THE FEDERAL MOVEMENT IN AUSTRALIA. 103 

ment/' and on 19th September, 1864, began to collect duties on the 
Murray, having previously passed an Act (7 Tic. No. 24) to remove 
doubts as to the legality of this course. 

In April, 1865, at the instance of Xew South Wales, a Conference 
was held at Sydney between representatives of the two colonies to 
reconsider the matter. (Votes and Proc, L.A. of N.S.W., 1865, i. 675). 
As a result a new agreement was entered into, by which on 1st Sep- 
tember, 1865, the Murray border again became free, subject to a 
yearly payment of a fixed sum by Victoria to Xew South Wales. The 
duties on Murray-borne goods from South Australia were to be col- 
lected by Victoria, according to the Victorian tariff. This agreement 
was revised in 1867, and expired on 1st Februarv, 1872. (Votes and 
Proc, L.A. of X.S.W., 1867-8, ii. 305; N.S.W.'Act, 31 Vic. No. 1.) 
At the Conference of 1873 a new agreement was entered into ; but 
Victoria retired from it on 31st January, 1873, owing to the abolition, 
under the Parkes Administration, of the Xew South Wales ad 
valorem duties which had been imposed by the Cowper Administration 
seven years previously. Since that date all attempts at agreement 
have failed, owing to the great difference between the tariffs of the 
two colonies, and duties have been collected on the border. For 
attempts at a similar agreement with Queensland, see X.S.AV. Act, 25 
Vic. Xo. 20; Votes and Proc, L.A. of X.S.W., 1871-2, i. 873. In 
1876 an Act was passed in Xew South Wales (Border Duties Conven- 
tion Act) to authorize Conventions with any of the adjoining colonies, 
but without any definite result. 

IxTERCOLONiAL CoNFEREXCEs, 1863-1880. — During the whole of this 
period Intercolonial Conferences were resorted to, with varying 
success, as the only available method of securing uniform legislation 
and concerted administration on subjects of common concern. A 
certain amount of joint action was thus secured with respect to such 
matters as lighthouses, ocean postal services, telegraphic communication 
with Europe, alien immigration, defence, and so forth. Most of these 
Conferences had no direct bearing on the question of Federation, 
except to show the utter inadequacy of this method of dealing ^Wth 
intercolonial questions. (See G. B. Barton, Historical Sketch of Aus- 
tralian Federation, pp. 12-14.) 

One of these Conferences, which was held at Melbourne in March, 
1867, is of special interest, as it brings Mr. (afterwards Sir) Henry 
Parkes — then Colonial Secretary of Xew South Wales in the second 
Martin administration — into prominent notice as an advocate of 
Federation. The Conference met to discuss the question of postal 
communication with Europe, the Imperial Government having offered 
to pay half the subsidy for a steam postal service between Point de 
Galle (in Ceylon) and Australia. The Conference, however, had 
larger ideas ; it passed resolutions in favour of establishing a fort- 
nightly service by three routes — Torres Straits, Suez, and Panama — 
the colonies undertaking to pay half the necessary subsidy. A 
memorial to the Queen was drawn up, and it was resolved that a 
Federal Council should be established to carry the resolutions into 
effect. Mr. Parkes addressed to the Conference these notable words: — 

'^ I think the time has arrived when these colonies should be 



104 HISTORICAL INTRODUCTION. 

united by some federal bond of connection. I think it must be mani- 
fest, to all thoughtful men, that there are questions projecting' them- 
selves upon our attention, which cannot be satisfactorily dealt with by 
any one of the individual Governments. I regard this occasion, there- 
fore, with great interest, because I believe it will inevitably lead to a 
more permanent federal understanding. I do not mean to say that, 
when you leave this room to-night, you will see a new constellation of 
six stars in the heavens. I do not startle your imagination, by asking 
you to look for the footprints of six young giants in the morning dew, 
when the night rolls away ; but this I feel certain of, that the mother- 
country will regard this congress of the colonies just in the same light 
as a father and mother may view the conduct of their children when 
they first observe those children beginning to look out for homes and 
connections for themselves. I am quite sure that the report of this 
meeting in your city of Melbourne, little as it may be thought of here, 
will make a profound impression upon the minds of thoughtful states- 
men in England. They will see that, for the first time, these offshoots 
of Empire in the Southern Hemisphere can unite, and that, in their 
union, they are backed by nearly 2,000,000 souls."-^-Melbourne Argus, 
18th March, 1867. 

A Bill to establish the proposed Federal Council was shortly 
afterwards introduced by Mr. Parkes in the Legislative Assembly of 
New South Wales. This Bill, to which the resolutions of the Confer- 
ence were annexed in the schedule, was carried through both Houses, 
and reserved for the Royal assent. It was, however, shelved by tha 
Home Government. The Duke of Buckingham, then Secretary for 
State, informed the Governor of New South Wales, in a despatch 
dated 5th January, 1868, that if the resolutions in the schedule had 
received Imperial assent, or had continued to command the assent of 
the colonies, or if the Act had created a Federal Council to deal 
generally with postal communication or any other subject of inter- 
colonial interest, he would have recommended that it be assented to ; 
but as the powers of the Council wei-e confined to a definite scheme, 
to the details of which Her Majesty^s Government could not agree, he 
was unable to submit it to the Queen. — Votes and Proc, Leg. Ass. of 
N.S.W., 1868-9, i. 535. 

Commercial Fedbkation. — Besides the border treaties, continued 
efforts were made to secure some more comprehensive scheme of 
customs union or commercial reciprocity. The Constitutions of all 
the Australasian colonies, except New Zealand, contained a prohibition 
— originating in the Australian Colonies Government Act of 1850 (13 
and 14 Vic. c. 59, sec. 31) — against any duties upon imports from 
" any particular country or place " which were not equally imposed 
on imports from " all other countries and places whatsoever." These 
prohibitions stood in the way of colonial legislation for reciprocity ; 
and in 1866 the P]xecutive Council of New South Wales adopted a 
minute asking for their repeal so far as to allow free importation from 
any one colony. (See despatch from Sir John Young to the Secretary 
for State, 21st December, 1866; Votes and Proc, L.A. of N.S.W., 
1868-9, ii. 109.) Lord Buckingham, the Secretary of State for the 
Colonies, replied in a despatch of 7th January, 1868, that the Home 



THE FEDERAL MOVEMENT IN AUSTRALIA. 105 

Government would gladly aid the establishment of a Customs Union 
embracing all the adjacent colonies, aud providing for a uniform 
tariff, intercolonial freetrade, and an equal division of the customs 
duties ; they might even consider any partial relaxation of the existing 
rule ; but they could not propose the repeal of the clause which pre- 
vented differential duties. That would enable the colonies to 
discriminate against foreign nations, and even against the mother- 
country, and might seriously embarrass treaty relations. Thereupon 
the Government of New Zealand proposed an intercolonial Conference 
to consider the question of a Customs Union. In 1870 Tasmania 
renewed the proposal; and a Conference was accordingly held at 
Melbourne, in June and July, 1870, between delegates from New 
South Wales, Victoria, South Australia, and Tasmania, at which the 
most important question considered was the establishment of a 
Customs Union, with a uniform tariff and intercolonial freetrade. 
(Votes and Proc, L.A. of N.S.W., i. 583.) 

This time the uniform tariff was the stumbling-block. All the 
colonies agreed that a uniform tariff was desirable ; but when they 
proceeded to frame such a tariff, the fiscal policies of New South 
Wales and Victoria proved irreconcilable. The Victorian delegates 
(Messrs. J. G. Francis and James McCulloch) absolutely declined to 
surrender the principle, recognized by the Victorian tariff, of dis- 
criminating between raw materials and manufactured goods. The 
New South Whales delegates (Messrs. Charles Cowper and Saul 
Samuel) declined to consider any proposition to amend their tariff 
in the direction of such a principle. On articles subject to a '•' fixed " 
duty — such as spirits, wines, beer, tobacco, tea, &c. — an agreement 
could probably have been arrived at ; but the determination of each 
colony to adhere to its fiscal principles made a Customs Union between 
them impossible. 

An effort was then made to patch up an agreement between 
Victoria, South Australia, and Tasmania; but here again insuperable 
difficulties disclosed themselves. With a Customs Union of all the 
colonies, Victoria had been willing to agree to intercolonial freetrade 
and the distribution of revenue on a population basis. But with 
New South Wales standing out, Victoria considered that " the pros- 
pective advantages were diminished," and offered very different terms 
— namely, that distribution should be governed by contribution, that 
the Victorian tariff should be accepted as the common basis, and that 
the Victorian Parliament should retain the power to alter the tariff. 
The other colonies promptly rejected this proposal, and all hope of a 
Customs Union fell through. 

The Conference reported, however, that though they had not 
arrived at a definite conclusion, they had a deep conviction of the 
importance of the question; and they prepared a memorial to the 
Home Government praying for the removal of the existing restrictions 
on intercolonial commercial treaties. 

On 31st July, 1871, Lord Kimberley, the Secretary of State for 
the Colonies, sent a circular despatch to the several Governors on the 
subject of colonial tariffs. (Votes and Proc, L.A. of N.S.W., 1871-2, 
i. 845.) He had received despatches from several of the Governors, 



106 HISTORICAL INTRODUCTION. 

intimating a desire for reciprocal agreements, and had received 
reserved Bills from New Zealand and Tasmariia dealing with the 
subject. Like the Duke of Buckingham, he objected to conceding a 
general power to make reciprocal arrangements, but was favourable 
to a Customs Union with a uniform tariff. He cited the British treaty 
with the German Zollverein, to show that differential duties in the 
colonies would infringe the treaty obligations of the Empire. 

Thereupon a further Conference was held at Melbourne in Sep- 
tember, 1871, at which New South Wales, Victoria, South Australia, 
Queensland, and Tasmania were represented. Lord Kimberley's 
despatch was discussed, and some very plainly -worded resolutions 
were passed, claiming that the colonies had a right to enter into 
arrangements for reciprocity, that no Imperial treaty should limit 
this right, and that Imperial interference with colonial fiscal policies 
should absolutely cease. Lord Kimberley replied in a lengthy des- 
patch of 19th April, 1872, in which he invited a ^'friendly discussion" 
of the whole question. He argued that compliance with the request 
would involve not only the repeal of the prohibition in the various 
Constitutions, but also the exclusion of the colonies from future 
commercial treaties containing stipulations against differential duties. 
(Votes and Proc, L.A. of N.S.W., 1872, i. 1015.) 

Finally, a Conference, convened by Sir Henry Parkes, was held 
at Sydney in January and February, 1873, at which all the seven 
colonies were represented. With regard to intercolonial reciprocity, 
it was resolved to urge on Lord Kimberley the claims of the colonies, 
and to adopt a memorial to the Home Grovernment for the removal of 
the restrictions which prevented the colonies agreeing to admit the 
products of any colony into any other colony free of duty. As to a 
Customs Union, it was resolved by a majority of one that such a 
union would be desirable, on the understanding that customs duties 
ought only to be levied for purposes of revenue, and not for 
purposes of protection. (Votes and Proc, L.A. of N.S.W., 1872-3, 
i. 1161.) 

Lord Kimberley, though he maintained his own opinion, yielded 
to these repeated demands of the colonies, and introduced the Austra- 
lian Colonies Duties Bill of 1873, which was passed, though Earl Grey 
and others opposed it as a step to commercial disunion. It merely 
provides that the legislature of any of the Australian colonies shall, 
for the pui'pose of carrying into effect any agreement with any other 
of such colonies, have full power to make laws for the remission or 
imposition of import duties on articles imported from such other 
colonies. 

The colonies thus obtained full statutory powers to enter into 
arrangements for reciprocity, but the power was never used. The 
constitutional obstacle was removed, but the practical difficulties in 
the way of any customs union, short of the establishment of a Federal 
Parliament, remained. 

Victorian Royal Commission, 1870. — After the failure of Deas- 
Thomson's and Duffy's Select Committees, very little was heard of any 
real proposal for Federation until 1870, when Mr. Duffy made a final 
effort. He secured the appointment, on 31st August, of a Royal 



THE FEDERAL MOVEMENT IN AUSTRALIA 107 

Commission " to consider and report upon the necessity of a Federal 
Union of the Australian colonies for legislative purposes, and the best 
means of accomplishing such a union." On 3rd October the Commission 
brought up a " first report." As usual, there was unanimity as to the 
advantages of a Federal Union. As to the means of effecting a union, 
it was recognized that the form of union must be left to be decided 
by an accredited intercolonial Conference, and by the several legisla- 
tures. Opinion in the colonies seemed to be divided between a 
Constitution like that of the recently created Canadian Dominion on 
the one hand, or a mere Federal Council on the other. But they 
thought that a preliminary step, as to which there would probably be 
little difference of opinion, would be a permissive Imperial Act, 
authorizing the Queen to establish a Federal Union of any colonies 
which should agree upon terms. They thought that the best means 
of accomplishing a union was to remove, by such an Act, all legal 
impediments to it, and leave the colonies to determine, by negotiation 
among themselves, how and when they would avail themselves of the 
opportunity. They proposed to frame, and print with their second 
report, a Bill of this kind for transmission to the Imperial Parliament. 
Then followed some rather startling suggestions as to granting the 
colonies " sovereign rights " of making treaties, and remaining neutral 
in time of war — suggestions to which some of the delegates declined 
to subscribe. Neither the promised "second report" nor the proposed 
Bill were ever issued; and though the above report was circulated, 
no further steps were taken. 

Conference of 1880-1. — A distinct stage in the Federal move- 
ment is marked by a Conference which met at Melbourne in November 
and December, 1880, and afterwards at Sydnev in the following 
January. (Votes and Proc, L.A. of N.S.W., 1881, i. 329.) At its 
first meeting only the three colonies of New South Wales, Victoria, 
and South Australia were represented. Sir Henry Parkes submitted 
the "basis of a possible agreement as to customs duties." Briefly, it 
was to the effect that uniform duties of customs and excise should be 
levied on spirits, tobacco, and beer — such duties to be fixed, for the 
most part, at the highest rates then prevailing; that no customs duties 
should be levied except at the seaports ; and that balances should be 
adjusted between the Governments on the basis of the intercolonial 
trade statistics of 1878-80. He declared that New South Wales was 
prepared to sign a Convention for three or five years on such a basis. 
The restriction of uniformity to the articles mentioned, of course, 
shirked the burning question of freetrade and protection. Mr. (after- 
wards Sir) Graham Beny, for Victoria, maintained that the only 
satisfactory solution of the border question was a completely uniform 
tariff — more than hinting, however, that the tariff must be mainly that 
of Victoria. The matter was discussed, and postponed to the Sydney 
session. 

Resolutions were also passed, at the instance of Sir Henry Parkes, 
affirming (1) that the time had arrived when a Federal Council should 
be created to deal with intercolonial matters; (2) that such Council 
might be constituted, with limited powers, by Acts of the several 
Parliaments, each colony having an equal number of representatives : 



108 HISTORICAL INTRODUCTION. 

(3) that the control of each colony over its own revenue should be 
preserved intact ; and (4) that New South Wales should be requested 
to prepare the necessary Bill, to be submitted to the Conference at its 
next meeting. 

The Sydney session in January was joined by delegates from all 
the seven colonies. The proposal of a uniform tariff ended with a 
mere recommendation that a joint commission should be appointed to 
frame a common tariff^ and that the number of commissioners from 
each colony should be — Victoria^ three ; New South Wales, New Zea- 
land, South Australia, and Queensland, two each; Tasmania and 
Western Australia, one each. No such commission was ever appointed, 
so that the proposal, like every other proposal for a uniform tariff, 
ended in talk. 

The scheme for a Federal Council got a little further. Sir Henry 
Parkes brought up the promised Bill, together with the following 
interesting memorandum: "In respect to the Federal Council Bill 
now submitted, the following positions are assumed as hardly open to 
debate : — 

"1. That the time is not come for the construction of a Federal 
Constitution, with an Australian Federal Parliament. 

" 2. That the time is come when a number of matters of much 
concern to all the colonies, might be dealt with more 
effectually by some federal authority than by the colonies 
separately. 

" 3. That an organization which would lead men to think in the 
direction of federation, and accustom the public mind to 
federal ideas, would be the best preparation for the foun- 
dation of Federal Government. 

"The Bill has been prepared to carry out the idea of a mixed 
body, partly legislative and partly administrative, as the forerunner 
of a more matured system of Federal Government. Care has been 
taken throughout to give effective power to the proposed Federal 
Council within prescribed limits, without impairing the authority 
of the colonies represented in that body. 

"No attempt has been made to constitute the proposed council 
on any historical model, but the object has been to meet the circum- 
stances of the present Australian situation, and to pave the way to a 
complete federal organization hereafter." 

This memorandum, and Sir Henry Parkes' previous resolutions, 
define very clearly his federal policy at that time. The main obstacle 
to complete Federation was the difference in fiscal policy between 
New South Wales and Victoria. Victorian statesmen would not 
listen to any uniform tariff proposal except on the basis of 
protection ; New South Wales statesmen were equally determined to 
maintain f reetrade ; and neither were willing to entrust the question 
to the free decision of a Federal Legislature. Neither a simple 
customs union, nor a Federation involving a customs union, was for 
the time attainable. Sir Henry Parkes behoved that a time would 
come when the people of both colonies would place Federation above 
the fiscal question, and would be ready to entrust the settlement of 
that question to their joint representatives ; but meanwhile the only 



THE FEDERAL MOVEMENT IN AUSTRALIA. 109 

form of Federation possible would be one which left the fiscal question 
out altogether. He believed that such a preliminary union would 
prepare the way for a more complete Federation. 

The correctness of Sir Henry Parkes' judgment^ that the time was 
not come for a more complete Federation, was strikingly shown in the 
Conference itself. An apple of discord was thrown into the discussion 
by Mr. Graham Berry, who made the startling proposition that, as the 
Council would need revenue of some kind, the revenues arising from 
the sale and occupation of public lands should be transferred to it. 
This suggestion received no support except from the Victorian 
delegates. It was presumably intended to prove, by a reductio ad 
absurdujn, the uselessness and impracticability of a Federation which 
did not control the customs revenue. 

A motion, that the Conference should agree to the Bill, and 
recommend it to the legislatures, was then put, and resulted in an 
equal division. New South Wales, South Australia, and Tasmania 
voted for it ; Victoria, Queensland, and Xew Zealand against : whilst 
the West Australian delegates did not vote at all. The proposal for 
a Federal Council had, therefore, to be abandoned. 

The only federal institution as to which the Conference could 
agree was an Australian Court of Appeal. A Bill for this purpose 
was framed and approved, and a resolution was passed recommending 
the Legislatures to memorialize the Home Government with a view to 
Imperial legislation on the subject. But recommendation is one thing, 
and action another ; nothing further was done. 



(6) THE FEDERAL COUNCIL. 



EvEXTS OP 1883. — Up to the year 1883 every proposal for any 
kind of Federation — complete or partial — had failed altogether. 
Some small degree of uniform legislation had been attained by con- 
ference ; some temporary border treaties had been entered into 
between individual colonies ; but no basis had been agreed on for any 
form of political union. But the events of 1883 helped to draw closer 
the bonds between the colonies, and to emphasize the need of joint 
action. 

In June, 1883, the last section of the railway line between Sydney 
and Melbourne was completed, and the long-delayed junction between 
the railway systems of the two colonies was thus effected at the 
Murray River. A banquet held at Albury on that occasion, and 
attended by the Governors of both colonies and by many prominent 
statesmen, affords an interesting historical record of the after-dinner 
views of prominent men on the subject of Federation, The union of 
railways irresistibly suggested the greater political union ; but most 
of the speakers spoke of Federation as a " far-off divine event " 
rather than as a practical policy. The Governors, of course, welcomed 
the joining of hands across the Murray as a step towards Federation. 
The speakers from the mother-colony did not respond very heartily. 
Sir John Robertson, in a characteristic speech, alluded to a " some- 



110 HISTORICAL INTRODUCTION. 

thing called Federation," said that Victoria had separated of her own 
free will, and invited her to return as a repentant child to her mother. 
Mr. (afterwards Sir) Alexander Stuart, the JSTew South Wales Premier, 
expressed his belief in slow development, and did not think that 
Federation could be "precipitated in a moment." Mr. James Service, 
the Victorian Premier, was the most ardent federalist of the gathering. 
"We want Federation" he said, "and we want it now. I have 
been now 30 years almost in public life, and I decline to subscribe to 
the doctrine that I am to die before I see the grand Federation of the 
colonies. There is no earthly reason for its being delayed. We 
imagine there are supreme difficulties in the way, but I believe they 
will crumble into dust; and I take this opportunity of telling my 
friend, the Premier of New South Wales, that we intend to test the 
question." Other Victorian speakers were less definite. Mr. Duncan 
Gillies said that a customs union must precede any other kind of 
Federation ; whilst Mr. Graham Berry, though announcing that 
Victoria was " quite ready to unite," stipulated that Victorian 
manufacturing industries must be considered. In a word, every one 
was willing to federate; but Sir John Eobertson's idea of Federation 
was the re-annexation of Victoria, Mr. Berry's idea was union under 
the Victorian tarii?, and most of the others regarded it as a topic of 
after-dinner oratory rather than a matter of practical politics. 

But Avhilst the development of intercolonial relations was deepen- 
ing the conviction that union was needed, the real motive power — the 
stimulus to an active public interest — came from outside. Hitherto 
Australia had regarded foreign complications as antipodean matters 
which did not much concern her; but the external need of union was 
brought home to all the colonies by the increased activity of foreign 
Powers in the Pacific. In 1883 rumours became current of intended 
annexations by France and Germany. The Germans were credited 
with designs on New Guinea; and to forestall them Sir Thomas 
Mcllwraith, Premier of Queensland, sent a magistrate to that island 
in April to take possession in the name of the Queen. His action, 
though generally approved in the colonies, was disavowed by the 
Home Government. The French, moreover, were openly coveting 
the New Hebrides, and were reported to be arranging to transport to 
New Caledonia a large number of recidivutes, or habitual criminals. 

In this emergency the colonies found that disunion hampered 
them in making proper representations to the Imperial Government, 
and weakened the effect of what representations they made. Here 
was a practical and convincing argument for Federation; and it was 
made the most of. The Executive Council of Queensland, on 17th 
July, 1883, resolved that the Home Government should be invited to 
move in the direction of a federal union. What was Avanted, however, 
was not Imperial action, but Australian action ; and Mr. James 
Service — true to his promise at the Albury banquet — took the more 
practical step of urging an intercolonial conference. Accordingly, 
on 28th November, a "Convention" met in Sydney, at which the 
seven colonies were represented, and also Fiji. 

Mr. Service immediately submitted a set of resolutions urging 
the annexation of, or a protectorate over, East New Guinea and the 



THE FEDERAL MOVEMENT IN AUSTRALIA 111 

West Pacific Islands from the equator to the New Hebrides, in order 
to prevent them falling into the hands of foreign powers ; aflSrming 
that the colonies were willing to bear a share of the cost ; protesting 
against the French recidiviste proposals ; and concluding with the 
following resolution : — " That, in view of the foregoing resolutions, 
and of the many subjects of pressing importance on which the 
colonies, though of one mind, are unable to obtain united action 
owing to the absence of some common authority, the time has now 
arrived for drawing closer the ties which bind the colonies to each 
other by the establishment of a Federal Union in regard to such 
matters as this Convention shall specifically determine/' 

It is certain that Mr. Service had in his mind the establishment 
of a real federal Government. The other delegates, however, were 
not prepared to go to this length ; and Mr. (afterwards Sir) Samuel 
Grifiith, Premier of Queensland, submitted the following resolution in 
favour of a Federal Council : — 

" That it is desirable that a Federal Australasian Council should 
be created for the purpose of dealing with the following matters ; — 

" 1. The marine defences of Australasia, beyond territorial limits. 

" 2. Matters affecting the relations of Australasia with the islands 
of the Pacific. 

" 3. The prevention of the influx of criminals. 

" 4. The regulation of quarantine. 

" 5. Such other matters of general Australasian interest as may 
be referred to it by Her Majesty or by any of the Austra- 
lian Legislatures." 

Mr. Griffith's resolution was adopted, and on 3rd December a 
Committee was appointed, with Mr. William Bede Dalley (then 
Attorney-General of New South Wales in the Stuart Ministry) as 
chairman. The following day the Committee brought up its report, 
together with a " Bill to establish a Federal Council of Australasia," 
of which Mr. Griffith was the draftsman. The Bill was somewhat 
altered in Committee, the powers of the Federal Council (partly in 
consequence of outside criticism) being considerably reduced. The 
Bill provided for a Federal Council, and was to affect only those 
colonies whose legislatures passed Acts adopting it. It was not to 
come into force until four colonies at least had passed such adopting 
Acts. Each colony was to have two representatives, except Crown 
colonies, which were to have one each ; and the mode of their appoint- 
ment in each colony was left to the legislature. The first session was 
to be at Hobart, and subsequent sessions wherever the Council itself 
should decide. 

The Council was to be a legislature merely, with no executive 
powers, and no control over revenue or expenditure. And even its 
legislative powers were very scanty. The matters over which it was 
given an independent legislative authority were only seven. Foremost 
of these were " the relations of Australasia with the islands of the 
Pacific," and "prevention of the influx of criminals" — the two burn- 
ing questions which had led up to the Convention. The others related 
to fisheries in Australasian waters outside territorial limits, the service 
of civil process beyond the limits of a colony, the enforcement of judg- 



112 HISTORICAL INTRODUCTION. 

ments and of criminal process beyond the limits of a colony, the 
extradition of oifenders, and the custody of offenders on Government 
ships beyond territorial limits. Those were the only matters on which 
the Council could legislate of its own motion. But there was a second 
list of matters which the legislatures of two or more colonies mi-ght 
refer to the Council, and on which the Council might then legislate, 
but only so as to affect the referring or adopting colonies. This list 
of matters, as to which the Council could only legislate by request, 
comprised defence, quarantine, patents and copyright, bills of exchange 
and promissory notes, weights and measures, recognition of marriage 
and divorce, naturalization, status of corporations, and " any other 
matter of general Australasian interest with respect to which the 
legislatures of the several colonies can legislate within their own 
limits, and as to which it is deemed desirable that there should be a 
law of general application.'^ All laws of the Council were to be pre- 
sented, for the Royal assent, to the Governor of the colony in which 
the Council was sitting. 

The Bill was adopted by the Convention in the following resolu- 
tion : — " That this Convention, recognizing that the time has not yet 
arrived at which a complete federal union of the Australasian colonies 
can be attained, but considering that there are many matters of 
general interest with respect to which united action would be advan- 
tageous, adopts the accompanying draft Bill for the Constitution of a 
Federal Council, as defining the matters upon which such united action 
is both desirable and practicable at the present time, and as embody- 
ing the provisions best adapted to secure that object, so far as it is 
now capable of attainment." A resolution was also passed pledging 
the Governments of the several colonies to invite their Legislatures to 
pass addresses to the Queen praying for legislation on the lines of the 
Draft Bill. 

Meanwhile the proceedings of the Convention, and the Constitu- 
tion of the proposed Federal Council, were being severely criticised in 
the Sydney press, and also in the New South Wales Parliament. The 
Convention had sat with closed doors ; and it seems that at one time, 
in its zeal for prompt action, it had contemplated asking the Home 
Government to pass the Bill at once, without reference to the Legisla- 
tures. Even the agreement arrived at only gave the Legislatures the 
option of accepting or rejecting the scheme as it stood, and gave them 
no voice in deciding its details. There was a strong feeling in Sydney 
against making so important a constitutional change with so little con- 
sideration ; and the Bill itself was objected to because the Council, to 
which power was given to override the local Legislatures, was merely 
a small, peripatetic, and more or less irresponsible body of delegates. 
Objection was made, in fact, to handing over powers of federal legis- 
lation to any less important and less representative a body than a real 
Federal Parliament. y^ 

In July and August, 1884, addresses to the Crown, praying for 
the enactment of the Federal Council Bill, were passed by the Legis- 
latures of Victoria, Tasmania, Queensland, Western Australia, and Fiji. 
New South Wales and New Zealand, however, stood aloof. In New 
South Wales the Government pleaded the pressure of more important 



THE FEDERAL MOVEMENT IX AUSTRALIA. 113 

business for not dealing promptly with the matter. In the Legislative 
Assembly, on 25th March, a resolution had been carried, at the 
instance of Mr. L. F. Hejdon, affirming that no Federal Council Bill 
should be enacted by the Imperial Parliament until it had been sub- 
mitted to the Leofislature of New South Wales. In the Legislative 
Council, in July, there had been considerable debate on resolutions 
moved by the Hon. John Stewart, protesting against any annexation 
of New Guinea as an unjustifiable interference with the liberty of the 
natives, and affirming that "any attempt to establish a Federal 
Government, having legislative jurisdiction over two or more colonies, 
is not at present necessary or desirable." The resolutions were 
eventually shelved by the "previous question." On 7th August, in 
consequence of telegraphic news from London that the Federal Council 
Bill was likely to be proceeded with shortly, Sir Alexander Stuart, the 
Premier of New South Wales, telegraphed to the Agent-General that 
such action would be premature until the Parliament of New South 
Wales had expressed an opinion. Political opinion in New South 
Wales was very much divided, and the attitude of the Government was 
consistently cautious and non-committal. At last, on 30th October, 
the resolutions were brought before both Houses — in the Assembly 
by the Treasurer, Mr. (afterwards Sir) George R. Dibbs, and in the 
Council by Mr. W. B. Dalley. In the Council the resolutions were 
carried by 13 votes to 9 ; in the Assembly they were defeated by one 
vote. Sir John Robertson and others frankly opposed union on the 
ground of mistrust of the other colonies ; but the most general objec- 
tion was that the scheme was premature, ill-conceived, and ineffective. 
The speech to which the most interest attaches was that of Sir Henry 
Parkes. He had taken no part in the proceedings of the " Conven- 
tion," having been on a trip to England from early in 1883 until 
August, 1884. Since 1881, however, he had entirely changed his 
views as to the desirability of a Federal Council ; and in his speech in 
opposition to the proposal he explained his position. His scheme of 
1881 had been tentative, and avowedly designed to awaken interest 
in the question of Federation. He had long since given it up as 
impracticable. Federation had since become a living national ques- 
tion, and the proposed scheme for a Federal Council, besides being 
unauthorized in its origin, was incurably defective. The Council 
would be a " ricketty body," composed of a very few members, and 
unfit to be entrusted with the power of overriding the local Parlia- 
ments. It would not only cause dissatisfaction and conflict, but it 
would " impede the way for a sure and solid Federation." 

" Is it not better," he said, " to let the idea of Federation mature, to 
grow in men's minds, until the time comes when we can have a solid, 
enduring Federation ? No good object can be served by creating a 
body such as this Council. It will add to our strife, it will add to our 
dissatisfaction with the working of our institutions, it will lead to 
endless complications, and it must result, at a very early stage, in an 
entire breakdown. It has not any inherent power, the Legislatures 
of these free countries will never give it inherent power, and it can 
never exist for any useful purpose. Considering the proud position in 
which we stand now — as free as any country in the world, with power 



lU HISTORICAL INTRODUCTION. 

to govern ourselves and maintain an attitude which commands the 
respect of great nations — we had better avoid joining in making a 
spectacle before the world which would cover us with ridicule." (See 
also Parkes' ''Fifty Years in the Making of Australian History," 
p. 503.) 

New South Wales and New Zealand, therefore, stood out of the 
Federal Council scheme. Nevertheless the Home Government, acting 
on the addresses passed in the other colonies, decided to carry it 
through; and on 23rd April, 1885, the Earl of Derby introduced the 
Bill, somewhat apologetically, in the House of Lords. He admitted 
that it was a rudimentary and imperfect measure, but it was what the 
colonies had asked for, and would make a beginning. A good deal 
hung on whether New South Wales would come into the union or not, 
but he hoped that the objections of the Legislature would not be 
permanent. A real Federation was impossible for a time, owing to 
the difference of fiscal policy ; the colonists themselves did not wish 
it, and did not think themselves ripe for it. 

The Bill thus introduced differed in a few respects from the Bill 
adopted by the " Convention." In the first place, a provision was 
inserted giving any colony the power to secede from the Council. 
This was done in the hope that New South Wales might thereby be 
induced to join, one of the objections of that colony being the irre- 
vocableness of the compact. Next, power was given to the Queen, at 
the request of the colonies, to increase the number of members of the 
Council. It was hoped that this might lead to the gradual expansion 
and development of federal institutions. Lastly, the Council was 
given an additional power to legislate on any matter which, at the 
request of the colonial legislatures, the Queen should think fit to refer 
to it. The Home Government had further suggested a clause dealing 
with the question of expenditure involved in the action of the Council; 
but this was so strongly objected to by the colonial Governments that 
it was dropped, and in matters involving expenditure the Council was 
left powerless to do anything but advise or recommend. 

The Bill passed through the British Parliament with very little 
debate. In the Lords it was supported by the Earl of Carnarvon, 
who had actively promoted the Canadian Union in 1867, and had 
endeavoured to secure a similar result among the South African 
colonies and States by the abortive " South African Union Act, 
1877." In the Commons, it was opposed by Sir George Campbell on 
the ground that the colonies would do better by developing their own 
territory than by meddling with the islands of the Pacific; and it was 
severely criticised by Mr. James Bryce, who regarded it as " a very 
scanty, fragmentary, and imperfect sketch of a Federal Constitution," 
which did not seem to have been satisfactorily discussed in the 
colonies. 

The Federal Council of Australasia Act, 1885, became law on 
14th August. Between September and December in the same year 
the five colonies of Western Australia, Fiji, Queensland, Tasmania, 
and Victoria, in that order, passed adopting Acts ; and all those 
colonies sent representatives to the first meeting of the Federal 
Council, which was held at Hobart from 25th January to 5th 



THE FEDERAL MOVEMENT IX AUSTRALIA. 115 

February, 1886. It began in a business-iike way by passing an 
Interpretation Act, to govern the interpretation of federal statutes, 
and an Evidence Act to prescribe the mode of proving them in Court. 
It then began its substantive legislative work by passing Acts for the 
intercolonial service of civil process and enforcement of judgments. 
At its second session, in January, 1888, it passed an Act to regulate 
the Queensland Pearl-shell and Beche-de-mer fisheries beyond terri- 
torial limits ; and at its third session in 1889 it passed a similar Act 
with respect to A\ est Australian fisheries. Meanwhile, in December, 
1888, South Australia passed an adopting Act agreeing to join the 
Council for a period of two years. From 1891 to 1899 it met in 
alternate years, but did little to justify its existence ; a fact which its 
friends ascribed to the aloofness of Xew South Wales. Possibly if 
New South Wales had joined, there might have been a few more 
federal statutes passed ; but the powers of the Council were too scanty 
to enable it to be of any great service. 

Fiji, though not withdrawing fi'om the Council, was never repre- 
sented after the first meeting. In 1892 Mr. F. W. Holder, Premier 
of South Australia, introduced a Bill to enable his colony to re-enter 
the Federal Council ; but it was rejected by the Upper House. The 
new movement for a national Convention had already made it clear 
that the road to Australian Federation lay in another direction. 
Efforts, however, were still made to extend the sphere of the Council's 
work. Acts referring different matters to the Council were passed in 
some of the colonies, but without practical result. In 1893, also, the 
Legislatures of all the colonies represented requested the Queen to 
increase the number of membere ; and accordingly, by Order-in- 
Council of 3rd March, 1894, it was directed that each colony (except- 
ing Crown colonies) should have five representatives. But all efforts 
to galvanize the Council into life were unavailing; and in January, 
1899, it met at Melbourne for the last time. 



(7) THE COMMONWEALTH BILL OF 1891. 



Federal Defence. — The great effort at Federation which led to 
the framing of the Commonwealth Bill of 1891 had for its immediate 
stimulus the recognized need of a national system of defence. The 
history of the new movement may, therefore, be appropriately intro- 
duced with a brief review of the attempts to deal with this subject. 

The question of colonial defence began to assume prominence in 
1878. In the previous year Lord Carnarvon (Secretary of State for 
the Colonies) had commissioned Lieutenant-General Sir W. D. Jervois 
to report upon the defences of the Australian colonies — a task which 
he carried out with the assistance of Lieutenant-Colonel Sir Peter 
Scratchley. As a result, the several colonies re-organized and increased 
their military forces, and devoted large sums to harbour defences and 
fortifications. The naval defence of Australia, and of Australian 
trade, was. still left almost wholly to the Imperial Government ; 
though Yctoria established a small navy for the defence of Port 



116 HISTORICAL INTRODUCTIOK 

Phillip, and New South Wales spent considerable sums upon the 
naval station at Sydney. 

At the Intercolonial Conference held in Sydney in 1881 (seep. 107, 
supra) it was resolved that the xiustralian squadron ought to be 
increased and ought to be the sole charge of the Imperial Government ; 
the colonies on their part undertaking their own land defences. The 
Home Government, however, thought that Australia ought to contri- 
bute towards the naval defence of her own trade; and a lloyal Com- 
mission which had been appointed in England in 1879, with Lord 
Carnarvon as chairman, " to enquire into the defence of British 
possessions and commerce abroad," endorsed this view in its second 
report, dated 23rd March, 1882. In 1885 Admiral Sir George Tryon 
was appointed to the command of the Australian station, with instruc- 
tions to discuss the matter; and owing to his negotiations some 
approach was made to an understanding. At the Colonial Conference 
held in London in April and May, 1887, presided over by Sir Henry 
Holland, and attended by representatives from all the British posses- 
sions, the basis of an agreement was settled, subject to ratification by 
the Australian Parliaments, 

This agreement provided for an auxiliary fleet to be equipped and 
maintained at the joint expense of Great Britain and the colonies. No 
reduction was to take place in the normal strength of the Imperial 
fleet on the Australian station. The auxiliary fleet was to consist of 
five fast cruisers and two torpedo gunboats of the Archer (improved 
type) and Rattlesnake classes; of which three cruisers and one gun- 
boat were to be kept always in commission, and the remainder held in 
reserve in Australasian ports. Great Britain was to pay the first cost 
of these vessels, and the colonies were to pay interest at five per cent. 
on the first cost to a sum not exceeding £35,000, and also the actual 
cost of maintenance, not exceeding £91,000, making a total of £126,000 
a year, which was to be contributed by the colonies on a population 
basis. The fleet was to be under the control of the Naval Commander- 
in-Chief on the Australian Naval Station, and was to be retained 
within the limits of the station, which is bounded as follows : — 

(N.) On the north, from the meridian of 95"^ E. long, by the 
parallel of 10° S. lat. to the meridian of ISO"" B. long. ; 
thence northward on that meridian to the parallel of 2*^ N. 
lat., and thence on that parallel to the meridian of 136° E. 
long.; thence northward to 12*^ N. lat., and along that 
parallel to 160° W. long. 

(W.) On the west by the meridian of 95° E. long. 

(S.) On the South by the Antarctic circle. 

(B.) On the east by the meridian of 160° W. long. 
. In peace or war, the ships were not to be employed beyond those 
limits without the consent of the colonial Governments. The agree- 
ment was to be for ten years, and only terminable, after that time, by 
a two years' notice. 

This agreement was ratified, within a few months, by '' Austral- 
asian Naval Force Acts," passed in the colonies of Victoria, South 
Australia, New South Wales, Tasmania, New Zealand, and Western 
Australia. The Queensland Parliament at first declined to ratify, but 



THE FEDERAL MOVEMENT IN AUSTRALIA. 117 

eventually came into line with the other colonies by passing the 
Australasian Xaval Force Act, 1891. The Imperial Parliament made 
provision for its share of the expenditure by the Imperial Defence 
Act, 1888 (51 and 52 Vic. c. 32). The auxiliary fleet arrived at" 
Sydney on 5th September, 1891. 

With respect to naval defence, therefore, some degree of federal 
action had been attained ; but with regard to military defence it was 
otherwise. Each colony had a separate military force, consisting chiefly 
of partially paid or unpaid volunteers, with a small permanent force. 
There was no uniformity of organization or equipment, and no co- 
operation. The (Imperial) Army Act, 1881 (44 and 45 Vic. c. 58, 
s. 177), provided that " where any force of volunteers or of militia, or 
any other force, is raised in India or a colony, any law of India or the 
colony may extend to the officers, non-commissioned officers, and men 
belonging to such force, whether within or without the limits of India 
or the colony." There was some doubt, however, whether this section 
was sufficient to authorize the employment of the troops of one colony 
in another colony. See remarks by Sir Samuel Griffith, Proceedings 
of the Colonial Conference of 1887, pp. 294, 438-40. 

The Colonial Conference of 1887 suggested that an Imperial 
officer should be appointed to report on the defences of the Australian 
colonies. In 1889 Major-General Sir J. Bevan Edwards was commis- 
sioned by the Home Government to inspect the military forces and 
defences of the Australian colonies, and to report on them. He 
accordingly made separate reports (dated 9th October, 1889) in respect 
of each colony, to which he attached a memorandum containing pro- 
positions for the re-organization of the forces of all the colonies. The 
points on which he laid stress were : — 

(1.) The federation of the forces of all the Australian colonies. 

(2.) The appointment of an Imperial officer, to advise and inspect 
in peace, and to command in war. 

(3.) A uniform system of organization and armament, and a 
common Defence Act. 

(4.) Amalgamation of the permanent forces into a fortress corps. 

(5.) A federal military college for the education of officers. 

(6.) The extension of the rifle clubs. 

(7.) A uniform gauge for railways. 

(8.) A federal small-arms manufactory, gun-wharf, and ordnance 
store. 

Sir Henry Parkes. — Earlier in 1889 Sir Henry Parkes, in a 
confidential correspondence with Mr. Duncan Gillies, Premier of Vic- 
toria, had suggested the creation of a Federal Parliament and Execu- 
tive. In reply, Mr. Gillies had expressed the fear that the fiscal 
difficulty was insuperable at present, and had urged the claims of the 
Federal Council as the first step towards union. 

On receipt of Major-General Edwards' memorandum, Sir Henry 
Parkes, on 15th October, telegraphed to the other Premiers suggesting 
a consultation on the sutDJect. On the 22nd Mr Gillies telegraphed a 
reply to the effect that a mere Conference would probably be barren 
of results, as the local Parliaments had no power to frame the 
necessary federal legislation. He pointed out that the necessary 



118 HISTORICAL INTRODUCTION. 

Imperial authority was already provided by the Federal Council Act, 
which enabled the Federal Council, upon a reference by the local 
Parliaments, to legislate as to " g-eneral defences." He therefore 
urged that Sir Henry Parkes should recommend his Parliament to 
give in its adhesion to the Federal Council. 

This suggestion did not meet Sir Henry Parkes' approval. He 
had been watching the signs of the times, and had come to the con- 
clusion that the popular sentiment was now ripe for a definite federal 
movement, at the head of which he resolved to place himself. At the 
time he was on a short visit to Brisbane, where he had been in consul- 
tation with, and had received encouragement from, the leading men 
of both political parties ; and on his return journey he was no sooner 
within the territory of New South Wales than he opened out, at Ten- 
terfield, with his famous speech of 24th October. He seized the 
opportunity of Major-General Edwards' I'eport to emphasize the 
necessity of federal defence. For this purpose the Federal Council 
would be altogether inadequate, because it had no executive power, 
and it was not directly representative. Nor would it be enough to 
ask the Imperial Parliament to pass an Act authorizing the troops of 
the colonies to unite in one federal army under Imperial control. 
What was wanted was a strong central executive, under the control 
of the Australian people. 

He believed that federal defence was necessary to the security of 
the colonies; and "feeling this, and seeing no other means of attain- 
ing the end, it seemed to him that the time was close at hand when 
they ought to set about creating a great national Government for all 
Australia. . . . As to the steps which should be taken to bring 
this about, a conference of the Governments had been pointed to, but 
they must take broader views in the initiation of the movement than 
had been taken hitherto ; they must appoint a Convention of leading 
men from all the colonies — delegates appointed by the authority of 
Parliament who would fully represent the opinion of the different 
Parliaments of the colonies. This Convention would have to devise 
the Constitution which would be necessary for bringing into existence 
a Federal Government with a Federal Parliament for the conduct of 
national business." 

Having thus set the ball rolling, Sir Henry Parkes, on 30th 
October, wrote to Mr. Gillies, reiterating his views as to the Federal 
Council, and making a definite proposition for the summoning of a 
Convention. " Believing that the time is ripe for consolidating the 
Australias into one, this Government respectfully invites you to join 
in taking the first great step — namely, to appoint representatives of 
Victoria to a National Convention for the purpose of devising and 
reporting upon an adequate scheme of Federal Government." He 
suggested that, in order to avoid any sense of inequality in debate or 
any party complexion, the number from each colony should be the 
same, and should be equally chosen from both sides in political life ; 
and he further suggested six members from each colony as a con- 
venient number. The form of union he had in mind is best described 
in his own words : — " The scheme of federal government, it is assumed, 
would necessarily follow close upon the type of the Dominion Govern- 



THE FEDERAL MOVEMENT I:N' AUSTRALIA. 119 

ment of Canada. It would provide for the appointment of a Governor- 
General, for the creation of an Australian Pm-y Council, and a Parlia- 
ment consisting of a Senate and a House of Commons. In the work 
of the Convention, no doubt, the rich stores of political knowledge 
which were collected by the framers of the Constitution of the United 
States would be largely resorted to, as well as the vast accumulations 
of learning on cognate subjects since that time." Copies of this 
despatch were also forwarded to all the other Australian Premiers, 
with requests for their concurrence. 

Mr. Gillies, however, was still diffident as to the immediate 
practicability of a full-blown Federal Government. That the matter 
might be fully considered, yet without altogether passing over the 
Federal Council, he proposed to Sir Henry Parkes, in a letter of 13th 
Xovember, that instead of a Parliamentary Convention the represen- 
tatives of the various colonies to the Federal Council should meet 
representatives from New South Wales to discuss and, if deemed 
necessary, to devise and report upon a scheme of Federation. He 
also suggested that, as the adoption of any .such scheme would take 
time, New South Wales might advantageously join the Federal 
Council in the meantime. The most pressing problems of defence 
could be dealt with by mere federal legislation, such as the Council 
could effect, without the need of any executive authority. The other 
Premiers wrote in much the same strain ; and on 28th November Sir 
Henry Parkes replied to Mr. Gillies consenting to " an informal meet- 
ing of the colonies for the purposes of preliminary consultation." 

Melbourne Coxferexce of 1890. — Accordingly a Conference met 
in Melbourne on 6th February, 1890, at which the seven colonies 
were represented by the following delegates, accredited by their 
respective Governments : — New South Wales, Sir Henry Parkes 
Premier) and Mr. William McMillan (Colonial Treasurer) ; Victoria, 
^Ir. Duncan Gillies (Premier) and Mr. Alfred Deakin (Chief Secre- 
tary) ; Queensland, Sir Samuel Walker Griffith (Leader of Opposition) 
and Mr. John Murtagh Macrossan (Colonial Secretary) ; South Aus- 
tralia, Dr. (afterwards Sir) John Alexander Cockburn (Premier) and 
Mr. Thomas Playford (Leader of Opposition) ; Tasmania, Mr. Andrew 
Inglis Clark (Attorney-General) and Mr. Bolton Stafford Bird 
(Treasurer) ; Western Australia, Sir James George Lee Steere 
(Speaker) ; New Zealand, Captain William Russell Russell (Colonial 
Secretary) and Sir John Hall. Mr. Geo. H. Jenkins, C.M.G , Clerk of 
the Parliament (Victoria), acted as clerk of the Conference. 

At a banquet held in celebration of the assembling of the Con- 
ference, two famous phrases originated. Mr. James Service, proposing 
the toast of " A United Australasia," spoke of the tariff' question as 
" the lion in the path," which federalists must either slay or be slain 
by ; and Sir Henry Parkes, in responding, made his historic uttei-ance, 
" The crimson thread of kinship runs through us all." 

It was recognized from the first that the Conference was only 
preliminary to a more representative and a more fully authorized 
gathering. Mr. Duncan Gillies was elected President of the Confer- 
ence, and the course of procedure adopted was to frame resolutions in 
committee and to admit the pablic to the ensuing debates. The 



120 HISTORICAL INTRODUCTION. 

principal debate, which occupied four out of the seven sitting days of 
the Conference, was on a motion by Sir Henry Parkes : — " That, in 
the opinion of this Conference, the best interests and the present and 
future prosperity of the Australian colonies will be promoted by an 
early union under the Crown, and while fully recognizing the valuable 
services of the Convention of 1883 in founding the Federal Council, it 
declares its opinion that the seven years which have since elapsed 
have developed the national life of Australia in population, in wealth, 
in the discovery of resources, and in self-governing capacity to an 
extent which justifies the higher act, at all times contemplated, of the 
union of the colonies, under one legislative and executive government, 
on principles just to the several colonies/' 

This resolution met with no opposition. Everyone recognized 
the need of a Federal Executive, and admitted the insufficiency of the 
Federal Council. The " lion in the path " was made light of, most of 
the delegates sharing Sir Henry Parkes' confident belief that the 
colonies would be willing to entrust the tariff question to the free 
decision of the Australian people; whilst Sir Samuel Griffith contended 
that a federal tariff, though desirable, was not absolutely essential, 
and that Federation without intercolonial freetrade would be better 
than no Federation at all. Mr. Playford expressed himself dis- 
appointed at Sir Henry Parkes' '^bald resolution," and would have 
liked a series of resolutions indicating the proposed constitution in 
outline. He also introduced " one or two notes of discord " by ques- 
tioning the federal motives of Victoria, and the federal sincerity of 
New South Wales. Sir James Lee Steere also asked for more 
practical detail, and complained that " this motion was a kind of blank 
shot fired across our bows by Sir Henry Parkes to make us show our 
colours." He doubted whether Western Australia could afford to 
sacrifice her provincial tariff, and he advocated a very limited Federa- 
tion, by a process of development out of the Federal Council. The 
other delegates heartily supported the motion, though some of them 
still hoped that, pending the achievement of a national Federation, 
New South Wales would join the Federal Council. Sir Henry Parkes 
replied in an eloquent speech, in which he defined, for himself and his 
colony, the high national standpoint from which he always looked, and 
tried to urge others to look, at this great question. " The main object 
for which, representing New South Wales, I stand here, is to say that 
we desire to enter upon this work of Federation without making any 
condition to the advantage of ourselves, without any stipulation what- 
ever, with a perfect preparedness to leave the proposed Convention 
free to devise its own scheme, and if a central Parliament comes into 
existence, with a perfect reliance upon its justice, upon its wisdom, 
and upon its honour. I think I know the people of New South Wales 
sufficiently to speak in their name; and I think I can answer for it 
that an overwhelming majority of my countrymen in that colony will 
approve of the grand step being taken of uniting all the colonies 
under one form of beneficent government, and under one national 
flag."^ 

The debate was closed by Mr. Duncan Gillies, the President, who 
was now beginning to take a more hopeful view of the prospects — 



THE FEDERAL MOVEMENT IN AUSTRALIA. 121 



''lions" not withstanding. " Xow there is no one who is more anxious to 
see a great Federation — a Federation complete in the largest sense — 
than I ani ; but I confess that I see great difficulties — not insuperable, 
but great difficulties — in the way of bringing about this Federation, 
and I am very much afraid that even when delegates are appointed 

to the Convention our troubles will only have just begun 

And when we meet, as I hope we shall shortly meet, in Convention, I 
believe we shall be able, in thrashing out the whole of these questions, 
to come to a solution that ^^all be satisfactory to the whole of our Par- 
liaments. In fact, on the subject of the tariff, I feel perfectly confi- 
dent that, if we are not able at once to level the barriers between the 
colonies so far as customs duties are concerned, we shall be able to 
arrive at some modification which will be satisfactory to all, and that 
modification may be a very reasonable one." Sir Henry Parkes' 
resolution was then unanimously agreed to, as were also the three 
following resolutions : — 

" 2. That to the union of the Australian colonies contemplated by 
the foregroinof resolution, the remoter Australasian colonies 

DO ' 

shall be entitled to admission at such times and on such 
conditions as may be hereafter agreed upon. 
" 3. That the members of the Conference should take such steps 
as may be necessary to induce the Legislatures of their 
respective colonies to appoint, during the present year, 
delegates to a National Australasian Convention, empowered 
to consider and report upon an adequate scheme for a 
Federal Constitution. 
" 4. That the Convention should consist of not more than seven 
members from each of the self-governing colonies, and not 
more than four members from each of the Crown colonies." 
It was also agi'eed that the Premier of Victoria should convene 
the Convention, and arrange, after consultation with the other 
Premiers, the time and place of meeting. 

Mr. Deakin then moved a further resolution, affirming that as the 
adoption of a Federal Constitution must take some time, and united 
action for defence and other purposes was a matter of urgency, " it is 
advisable that the Federal Council be employed for such purposes so 
far as its powers will permit, and with such an extension of its powers 
as may be decided upon, and that all the colonies should be repre- 
sented on the Council." This was, of course, an invitation for New 
South Wales and New Zealand to reconsider their attitude with regard 
to the Federal Council, and join that tentative body pending the 
adoption of a Federal Constitution. He thought that this would not 
only confer immediately the benefits of a partial union, but would also 
facilitate and hasten a more complete union. " If the two outstanding 
colonies," he said, " would only seek to induce their Parliaments to 
enter temporarily into the Federal Council, and wed with us from 
to-day, instead of putting off our marriage for two or three years, 
they would give striking evidence of the strength of the federal 
spirit." The representatives of the two truant colonies, however, 
declined to entertain the proposal for two reasons : — First, that they 
believed public opinion in those colonies to be against entering the 



122 HISTORICAL INTRODUCTION. 

Federal Council ; and next, that if the motion were carried, there was 
danger that the lesser issue would overshadow the greater — or, as 
Captain Russell put it, it was possible that if they were satisfied to go 
into " the shanty of the Federal Council, they might never enter the 
palatial mansion of a Dominion Governor." At the suggestion of 
several delegates, Mr. Deakin withdrew the motion. The proceedings 
closed with an address to the Queen, informing Her Majesty of the 
resolutions arrived at. 

Resolutions op the Paeliaments. — The Conference having thus 
recommended a National Convention, the next step was to obtain the 
requisite Parliamentary action. New South Wales led the way. On 
7th May, Sir Henry Parkes introduced in the Legislative Assembly a 
series of resolutions, affirming the concurrence of the House in the 
resolutions of the Conference, appointing four members to act with 
three members of the Legislative Council as delegates to a National 
Convention to frame a Federal Constitution, and requiring " that the 
Constitution, as adopted by the Convention, be submitted as soon as 
possible for the approval of the Parliament of this colony." On the 
same day similar resolutions were introduced by Mr. W. H. Suttor in 
the Legislative Council. In both Houses a protracted debate followed, 
extending, with many adjournments, over several months. In the 
Assembly Mr. Greorge R. Dibbs, the leader of the Opposition, opposed 
them strongly, announcing himself as in favour of an ultimate " com- 
plete union " of Australia as an independent nation, but condemning 
the scheme outlined by Sir Henry Parkes. Mr. J. H. Want also 
opposed the whole scheme as being a fashionable fad. Mr. Gr. H. 
Reid, while admitting the advantages of Federation, was not prepai-ed 
to sacrifice the freetrade policy of the colony, and suggested an amend- 
ment to make it clear that when the Constitution was drafted it should 
be submitted to Parliament, not merely for approval or disapproval as 
a whole, but for consideration in detail. Mr. T. M. Slattery moved an 
amendment recommending a "mutual system of defence," and joint 
action on a basis somewhat similar to that of the Federal Council, 
with the addition of a general Court of Appeal ; but this was defeated 
by an overwhelming vote of 92 against 10. The resolutions were 
finally agreed to, on the voices, on 10th September. Some discussion 
occurred over the delegates nominated by Sir Henry Parkes, inasmuch 
as Mr. Dibbs, though opposed to the scheme, claimed a right to be 
nominated. The question was settled by balloting for the delegates. 
In the Council, the resolutions were not finally passed until the 8th 
October. The whole discussion, in both Houses, showed a general 
passive assent to the general principle of Federation, coupled, however, 
with very divergent views as to the basis of union, considerable 
jealousy and mistrust of the other colonies, and a disinclination on the 
part of many members to any compromise on the tariff and other vital 
questions. Theoretical federalists were many, but earnest federalists 
were few ; a,nd there was as yet no popular impetus behind the move- 
ment — nothing more than a vague intellectual and sentimental assent 
to the principle. 

In Victoria the matter was much more expeditiously dealt with. 
Resolutions similar to those carried in New South Wales were intro- 



THE FEDERAL MOVEMENT IX AUSTRALIA. 123 

duced in the Legislative Assembly by Mr. Grillies on lOtli June, and 
carried on the same day. An amendment moved by Sir Bryan 
O'Loghlen, demanding a definite outline of the proposed scheme of 
Federation before the House concurred in the resolutions, received 
little support. In the Legislative Council, the resolutions were intro- 
duced by Mr. (afterwards Sir) H. Cuthbert on 1st July, and carried 
on 2nd July. Five delegates were appointed by the Assembly, and 
two by the Council, the Council carrying a resolution regretting that 
its right to a larger representation had not been recognized. 

In the South Australian Assembly, the resolutions were moved 
by Dr. Cockburn (Premier) in the Assembly on 26th June, were 
supported by Mr. Thomas Play ford (Leader of Opposition), and 
carried after considerable debate on 22ud July. In the Council they 
were moved by Mr. J. H. Gordon on 24th June, and carried on 2nd 
July. Five delegates were appointed by the Assembly and two by 
the Council. 

In Tasmania, the resolutions were moved in the House of Assembly 
by Mr. B. S. Bird (Colonial Treasurer) on 3rd July, and passed on the 
following day. They were then concurred in by the Council, and 
delegates elected — four by the Assembly, two by the Council, and one 
by both Houses together. 

In Queensland, the resolutions were moved in the Assembly by 
Mr B. D. Morehead (Premier) on 9th July, and carried on the 15th. 
In the Council, they were moved by Mr. A. J. Thynne, on 23rd July, 
and carried on 6th August. Five delegates were appointed by the 
Assembly and two by the Council. 

In New Zealand, Federation was a matter of remote interest, and 
in spite of repeated inquiries by Sir George Grey as to the intentions 
of the Government, nothing was done till 6th September, when 
Captain Russell introduced the resolutions in the House of Represen- 
tatives, with an addendum " that the delegates so appointed shall not 
be authorized to bind this colony in any way." The debate showed a 
friendly but non-committal interest in the question, the balancing 
considerations being the Australasian trade of the colony on the one 
hand, and its foreign trade on the other. The resolutions were 
carried on the 12th September, and on the 15th were moved and 
carried in the Council. Two delegates were appointed by the House 
of Representatives and one by the Council. 

In Western Australia nothing was done until the 23rd February, 
1891, when the Federal Convention was on the point of meeting. 
The resolutions were then moved and carried in both Houses on the 
same day, and seven delegates were appointed — five members of the 
Assembly and two of the Council. 

The Sydney Convention of 1891. — The first National Australasian 
Convention, " empowered to consider and report upon an adequate 
scheme for a Federal Constitution," was duly convened at Sydney on 
the 2nd March, 1891. The delegates from the several colonies were : — 

New South Wales : Sir Henry Parkes (Premier), Mr. AY. McMillan 
(Treasurer), Sir J. P. Abbott (Speaker), Mr. G. R. Dibbs (Leader of 
Opposition), Mr. W. H. Suttor (Vice-President of Executive Council), 
Mr. Edmund Barton, and Sir Patrick Jennings. 



124 HISTORICAL INTRODUCTION. 



Victoria : Mr. Alfred Deakin (ex-Chief Secretary), Mr. James 
Munro (Premier), Lieuteuant-Oolonel W. Collard Smith, Mr. H. J. 
Wrixon (ex- Attorney-General), Mr. Duncan Gillies (ex- Premier), Mr. 
H. Cuthbert (ex-Minister of Justice), and Mr. Nicholas Fitzgerald. 

Queensland : Mr. J. M. Macrossan (ex-Colonial Secretary), Mr. 
John Donaldson (ex-Colonial Treasurer), Sir S. W. Griffith (Premier), 
Sir Thomas Mcllwraith (Treasurer), Mr. A. Eutledge, Mr. A. J. 
Thynne (ex-Mini ster for Justice), and Mr. Thomas Macdonald- 
Patersou. 

South Australia : Mr. Richard Chaffey Baker, Mr. John H. 
Gordon (ex-Minister of Education), Sir John C. Bray (Chief Secre- 
tary), Dr. John A. Cockburn (ex-Premier), Sir John W. Downer, Mr. 
Charles C. Kingston, and Mr. Thomas Playford (Premier). 

Tasmania : Mr. William Moore (President of Legislative Council), 
Mr. Adye Douglas (ex-Premier), Mr. A. Inglis Clark (Attorney- 
General), Mr. W. H. Burgess, Mr. Nicholas J. Brown (Speaker), Mr. 
Bolton S. Bird (Treasurer), and Mr. Philip 0. Fysh (Premier). 

Western Australia : Mr, John Forrest (Premier), Mr. W. E. 
Marmion (Commissioner of Crown Lands), Sir James G. Lee Steere 
(Speaker), Mr. John A. Wright, Mr. John W. Hackett, Mr. Alexander 
Forrest, and Mr. W. T. Loton. 

New Zealand : Sir George Grey, Captain W. R. Russell, and Sir 
Harry A. Atkinson (Premier). 

In each colony the delegates had been chosen from both sides of 
political life; so that, although in three colonies (Victoria, Queensland 
and South Australia) there had been a change of Ministry since the 
appointment of delegates, yet the Premier of each colony was among 
its representatives. Of the other delegates, nine were ex-Premiers, 
whilst nearly all either were or had been Ministers of the Crown. 

The first business done by the Convention was to appoint Sir 
Henry Parkes as President — an honour accorded to him as being not 
only the Premier of the colony where the Convention sat, but also 
"the immediate author of the present movement." Sir Samuel 
Griffith was appointed Vice-President. Mr. Frederick William 
Webb, Clerk of the Legislative Assembly of New South Wales, was 
appointed Secretary to the Convention. The question of the admis- 
sion of the press and public was then dealt with. The general feel- 
ing was that the debates, whether in Convention or in Committee of 
the Whole, ought to be public ; and it was resolved " that the press 
and public be admitted, unless otherwise ordered, during the sittings 
of the Convention, on the order of the President.^' 

Parkes' Resolutions. — Before entering on the task of drafting a 
constitution, the Convention proceeded to debate at length a series of 
resolutions proposed by Sir Henry Parkes, with the object of obtain- 
ing a preliminary interchange of ideas, and of laying down a few 
guiding principles. The discussion of these resolutions, first in a 
general debate, and then in Committee, occupied eleven sitting days, 
and fills more than half of the printed debates of the Convention. 
These resolutions enunciated a few essential federal principles, and 
outlined the basis of a federal legislature, judiciary, and executive ; 
the text of them, as introduced, being as follows : — 



THE FEDERAL MOVEMENT IN AUSTRALIA. 125 

" That in order to establish and secure an enduring foundation 
for the structure of a federal government, the principles embodied in 
the resolutions following be agreed to : — 

" 1. That the powers and privileges and territorial rights of the 
several existing colonies shall remain intact, except in 
respect to such surrenders as may be agreed upon as 
necessary and incidental to the power and authority of the 
National Federal Government. 
" 2. That the trade and intercourse between the federated 
colonies, whether by means of land carriage or coastal 
navigation, shall be absolutely free. 
" 3. That the power and authority to impose customs duties shall 
be exclusively lodged in the Federal Government and 
Parliament, subject to such disposal of the revenues 
thence derived as shall be agreed upon. 
"4. That the military and naval defence of Australia shall be 

entrusted to federal forces, under one command. 
" Subject to these and other necessary provisions, this Conven- 
tion approves of the framing of a federal constitution, which shall 
establish : — 

"1. A parliament, to consist of a senate and a house of repre- 
sentatives, the former consisting of an equal number of 
members from each province, to be elected by a system 
which shall provide for the retirement of one-third of the 
members every years, so securing to the body itself 

a perpetual existence combined with definite responsibility 
to the electors, the latter to be elected by districts formed 
on a population basis, and to possess the sole power of 
originating and amending all bills appropriating revenue 
or imposing taxation. 
"2. A judiciary, consisting of a federal supreme court, which 
shall constitute a high court of appeal for Australia, 
under the direct authority of the Sovereign, whose 
decisions, as such, shall be final. 
" 3. An executive, consisting of a governor-general and such 
persons as may from time to time be appointed as his 
advisers, such persons sitting in Parliament, and whose 
term of office shall depend upon their possessing the 
confidence of the house of representatives, expressed by 
the support of the majority." 
The first draft of these resolutions had been framed by Sir Henry 
Parkes before the Convention met, and submitted by him to an 
informal meeting of the New South Wales delegates. (See Parkes' 
Fifty Years in the Making of Australian History, pp. 603-6.) This 
original draft differed in several important respects from the resolu- 
tions as moved. The clause as to the reservation of the " powers and 
privileges and territorial rights " of the colonies was absent from the 
original draft ; but there was a clause providing for a federal High 
Commission to devise '' an equitable scheme for the distribution of the 
public lands, and the satisfying of existing territorial rights," such 
scheme keeping in view both the necessary strength of the National 



126 HISTORICAL INTRODUCTION. 

Government and the just claims of the respective provinces. This 
High Commission was to be appointed by at least a two-thirds 
majority of the colonies, and was to report within two years; the 
final settlement to be made by a federal law, approved by a majority 
of the provincial Parliaments. In drafting this clause, Sir Henry 
Parkes had in view the vast unoccupied areas in North Queensland, 
the Northern Territory of South Australia, and Western Australia ; 
but his colleagues urged that any mention of the public lands would 
be inadvisable, and he deferred to their opinion. The first draft 
moreover provided for the disposal of customs revenues not merely 
" as shall be agreed upon," but " as shall be approved by the Federal 
and Provincial Parliaments." The clause as to defence provided for 
the raising of bodies of Militia or Volunteers by the Federal Parlia- 
ment. As to the Senate, the retirement of members was to be 
"one-third every seven years." The provision that the House of 
Representatives was to " possess the sole power of originating and 
amending all Bills appropriating revenue or imposing taxation " was 
absent ; as were also the words requiring that the members of the 
federal executive should sit in Parliament. And lastly, the federal 
Supreme Court was to consist of " not fewer than ten judges." The 
resolutions as submitted were therefore the President's own draft, as 
amended after consultation with his colleagues. He proposed them, 
not as embodying his final convictions, but as a ground-work of 
debate, and as expressing an outline of the required Constitution as 
it existed in his own mind. They were based, beyond all doubt, on a 
comparative study of the Constitutions of the United States and 
Canada. The fundamental principles of union thus laid down were 
— intercolonial freetrade, a federal tariff, federal defence, and the 
reservation of provincial rights in provincial matters ; whilst the 
essential features of the proposed national machinery were — a 
complete national government, with legislative, judicial, and executive 
departments ; a legislature of two chambers, representing respectively 
the States and the nation ; and a system of responsible government. 

Sir Henry Parkes prefaced his exposition of these resolutions by an 
appeal to the Convention to enter upon the work " in a broad federal 
spirit." " We cannot hope for any just conclusion — we cannot hope 
reasonably for any amount of valid success — unless we lose sight, to a 
large extent, of the local interests which we represent at the same time 
as we represent the great cause. There can be no Federation if we 
should happen, any of us, to insist upon conditions which stand in the 

way of Federation It does seem to me in the highest 

degree necessary that we should approach the general question in the 
most federal spirit that we can call to our support." 

In the general discussion which followed, most of the delegates 
took part. As to the greater part of the resolutions there was 
practical unanimity. The discussion turned mainly on the powers of 
J the two Houses, and their relation to the executive. Sir Samuel 
Griffith began by arguing that the double principle of representation 
logically involved the proposition that every federal law should receive 
the assent of a majority of the people and a majority of the States. 
The Senate ought to have an absolute power of veto, and to refuse it 



THE FEDERAL MOVEMENT IN AUSTRALIA. 127 

the power of amending money bills was to refuse it the power of 
" veto in detail " as to those Bills. He admitted that the principle of 
two co-ordinate Houses was new in conjunction with responsible 
government, and thought that the Constitution should be elastic 
enough to allow the problem of the responsibility of Ministers to Par- 
liament to work out its own development. The Senate's power to 
amend money bills was supported by the representatives of all the 
smaller colonies, but was vehemently opposed by the Victorian dele- 
gates (with the exception of the veteran Legislative Councillor, Mr. 
Nicholas Fitzgerald). The New South Wales representatives were 
divided on the subject. In Victoria — which, curiously enough, was 
the only colony whose Constitution expressly forebade the Upper 
House to amend money bills — there had been serious deadlocks on 
financial matters, and the financial predominance of the Lower House 
was a prominent article of political faith. Mr. Deakin, however, 
admitted that the degree of power Avhich might be entrusted to the 
Senate would depend largely on the mode of election adopted; and 
Mr. Cuthbert threw out the idea that the matter might be compro- 
mised by the South Australian method of allowing the Senate to 
" suggest " amendments. The problem of responsible government 
with a strong Senate was discussed, and Mr. Hackett propounded the 
dilemma that "either responsible government would kill federation, 
or federation would kill responsible government." Mr. Munro raised 
the difl&culty that the Senate's power of absolute veto meant power for 
the minority to rule. Mr. Deakin objected to the veto being extended 
to all kinds of legislation, whether State-rights were involved or not ; 
and Mr. Barton pointed out that State-interests as well as State- 
rights were involved. In fact, all the elements of the subsequent dis- 
cussions on " State-rights " and " majority rule " were present at the 
outset — except that there was no suggestion as yet of constituting the 
Senate in any other way than by equal representation. 

The fiscal question was also prominent in the debate. Some of 
the Victorians suggested a " guarantee " against ruthless interference 
^vith the vested interests created by their protective policy. They asked 
that it should be made clear that intercolonial freetrade was not to 
come about until the federal tariff was in force, and further suggested 
that for the first few years it should not be possible to reduce existing 
duties too suddenly. The latter suggestion, however, was somewhat 
satirically criticised by the representatives of other colonies, and was 
not pressed. The general feeling was that the fiscal policy of 
Australia must be absolutely entrusted to the Federal Parliament. 

One or two other elements of discord obtruded themselves during 
the debate. Sir George Grey, following the precedent of the original 
Constitution of New Zealand, proposed to place no limits on the 
legislative scope of the Federal Parliament — thus reducing the State 
legislatures to subordinate bodies ; he also advocated the election of 
the Governor-General by the people, and believed it to be " the duty 
of the Convention" to give the electors of each State full power to 
reform their own Constitutions — an end which should be achieved by 
the simple process of gi^ang them elective Governors and elective 
Legislative Councils. This proposal to meddle with the State Consti- 



128 HISTORICAL INTRODUCTION. 

tutions received no support at all. Mr. Dibbs next threw into the 
Convention the "bombshell" of the federal capital — a bombshell 
which, however, failed altogether to explode. 

The Resolutions in Committee — The Convention then, on 13th 
March, went into Committee of the Whole to consider the resolutions 
in detail. Some discussion took place on the advisability of amplify- 
ing the resolutions for the better guidance of those who might be 
appointed to draft a Bill. On Mr. Deakin's motion, the paragraph 
vesting exclusively in the Federal Parliament the power to impose 
customs duties was extended to duties of excise, but with the limitation 
— designed to prevent the unfair treatment of the products of any 
colony — that such duties should only be imposed "upon goods the 
subject of customs duties." On Mr. Gordon's motion, the paragraph 
was further extended to include the offering of bounties. 

But the main debate, extending over two days, was on the power 
of the Senate with regard to money bills. This was the critical 
question which divided the Convention, and as to which the watch- 
word of " compromise " was not at first listened to. Sir Henry 
Parkes' resolution proposed to give the House of Representatives 
"the sole power of originating and amending all Bills appropriating 
revenue or imposing taxation." The smaller States, however, claimed 
for the Senate "co-equal powers," with the sole exception of initiating 
money Bills ; they asked for full powers of amendment and rejection 
— of "veto in detail" and "veto in bulk." An amendment by Sir 
John Downer, to strike out the words "and amending," was agreed 
to, by way of preliminary, not as deciding the question, but as leaving 
it open for discussion. The real battle then took place on two 
amendments : one by Sir John Downer, giving the Senate " the power 
of rejecting in whole or in part any of such last-mentioned Bills;" 
the other by Mr. Wrixon, providing (1) that the powers of the 
Houses should be equal except with regard to money Bills, which the 
Senate should be entitled to affirm or reject, but not to amend ; and 
(2) that it should be unlawful to "tack" anything to the annual 
appropriation Bill. Sir John Downer's amendment represented prac- 
tically the extreme claims of the small States ; Mr. Wrixon's that of 
the large States, with the provision against " tacking" thrown in as a 
concession. The debate became warm ; neither side seemed inclined 
to give way, aud hints were thrown out that the delegates might as 
well " pack up their portmanteaux." At last, however, the " spirit 
of compromise" was successfully appealed to; and though no basis of 
compromise could as yet be found, it was agreed not to press the 
matter to a vDte at that stage, but to withdraw both amendments and 
let the decision stand over. 

The resolution dealing with the executive was amended by leaving 
out the words which provided that Ministers should sit in Parliament, 
and that their term of office should depend on the confidence of the 
House of Representatives, it was not deemed advisable to stereotype 
the conventional rules of responsible government in this way. Sir 
Samuel Griffith thought it ought to be distinctly provided, as in the 
Constitutions of the colonies, that Ministers "may" sit in Parliament; 
but it was decided to leave the whole question open till a later stage. 



THE FEDERAL MOVEMENT IN AUSTRALIA. 129 

The judiciary resolution was amended by omitting the provision 
that the decisions of the Supreme Court should be final, and this 
question also was left open. On Mr. Barton's motion, a resolution 
was added to forbid the subdivision or amalgamation of States without 
the consent of the Legislatures of the States concerned. Sir George 
Orey moved a resolution to allow the people of each State "to adopt, 
by the vote of a majority of voters, their own forms of State Consti- 
tution." This was objected to, as being an interference with the 
States. It was agreed, however, that the States ought not to have to 
go to the Imperial Government for power to change their Constitu- 
tions, and it was resolved "that provision should be made in the 
Federal Constitution which will enable each State to make such 
amendments in its Constitution as may be necessary for the purposes 
of the Federation." The resolutions, as amended, were then 
reported and agreed to. 

Appointment of Committees. — So far, the formal result of the 
Convention's work was merely a few resolutions, dealing with matters 
of general principle, and no decision had been reached upon any of 
the critical questions. The discussion, however, had pretty well 
tested the feelings of the Convention, and the time was now ripe to 
formulate the details of a complete scheme in the shape of a Bill. 
Accordingly, on 18th March, resolutions were passed for the appoint- 
ment of three Committees ; one, consisting of three members from 
each delegation, to consider constitutional machinery ; a second, con- 
sisting of one member from each delegation, to consider finance, 
taxation, and trade regulation ; and a third, consisting of one member 
from each delegation, to deal ^vith the judiciary. The two latter 
Committees were to report to the Constitutional Committee, which 
was to prepare and submit to the Convention a Bill for the establish- 
ment of a Federal Constitution. The different delegations made their 
own nominations to these Committees, which were composed as 
follows : — 

Constitutional Committee : Sir H. Parkes, Mr. Barton, Mr. 
Gillies, Mr. Deakin, Sir Samuel Griffith, Mr. Thynne, Mr. Playford, 
Sir John Downer, Mr. Clark, Mr. Douglas, Sir Geo. Grey, Captain 
Eussell, Mr. John Forrest, Sir James Lee-Steere. 

Finance Committee : Mr. McMillan, Mr. Munro, Sir Thomas 
Mcllwraith, Sir John Bray, Mr. Burgess, Sir Harry Atkinson, Mr. 
Marmion . 

Judiciary Committee : Mr. Dibbs, Mr. Wrixon, Mr. Rutledge, Mr. 
Kingston, Mr. Clark, Sir Harry Atkinson, Mr. Hackett. 

These Committees set to work on 19th March, and in the course 
of the next twelve days was framed the first draft of a Bill to constitute 
the Commonwealth of Australia. The framing of that Bill marks an 
epoch in the history of the movement. In those few days Federation I 
came down from the clouds to the earth ; it changed from a dream \ 
to a tangible reality. The idea was once for all crystallized into a / 
practical scheme, complete in all its details. As to many of the 
details, and even many of the principles, there was still to be keen 
and protracted dispute ; but with their definition the era of vague 
generalities ended, and the era of close criticism began. 



130 HISTORICAL INTRODUCTION. 

So important was the work of the Convention, and so great was 
its influence in the development of the Constitution, that it is 
necessary to review the material which the Convention had at their 
disposal. First of all, they had the Constitution Acts of the several 
colonies — all drawn from the common model of the British Constitu- 
tion, but all differing from it and from one another in many important 
respects. Then they had their own experience, as practical politicians, 
of the working of those Constitutions, and a close familiarity with 
their merits and defects. As some guide to the form of union needed, 
they had the various reports and debates which made up the history 
of the federal movement in Australia — a history in whose more recent 
stages many of the delegates had been actors. As a warning of faults 
to avoid, they had the example of the weak and impotent Federal 
Council — just as the Philadelphia Convention of 1787 had the example 
of the earlier confederation. Lastly, as models of fedei-al government, 
they had the constitutions of the United States of America and the 
Dominion of Canada — and, in a less degree, of the Swiss Eepublic — 
together with all the critical, historical, philosophical, and constitu- 
tional literature on the subject of federal systems and institutions. 
They were better equipped than the framers of the American consti- 
tution by the variety of federal examples available to them, and by a 
whole century's advance in political science. The Convention 
numbered many constitutional students who had deeply interested 
themselv^es in the subject — among whom may be specially mentioned 
Sir Samuel Grrifiith of Queensland, Sir Henry Parkes and Mr. Barton 
of Xew South Wales, Mr. Deakin and Mr. Wrixon of Victoria, Mr. 
E. C. Baker and Mr. Kingston of South Australia, and Mr. Inglis 
Clark of Tasmania. Mr. Baker had prepared a "Manual of Refer- 
ence to Authorities " for the use of the Convention ; whilst Mr. 
Clark had prepared an entire draft Constitution. 

The deliberations of the Committee were private. The last stage 
in the process of drafting was completed on board the S.S. Lucinda, 
on the Hawkesbury River, from 27th to 29th March, by a sub-com- 
mittee consisting of Sir Samuel Griffith, Mr. Kingston, Mr. Barton, 
and Mr. Inglis Clark. On 31st March Sir Samuel Griffith, who had 
been appointed Chairman of the Constitutional Committee, and who 
had the chief hand in the actual drafting of the Bill, brought up the 
Report of that Committee, together with a draft Bill to constitute the 
Conimonwealth of Australia. The reports of the Finance and 
Judiciary Committees were also appended. 

The real work of the Convention was now practically finished ; 
for although the subsequent discussion in Committee occupies nearly 
half the printed volume of debates, not half a dozen substantial 
amendments were made. Indeed, with the single exception that the 
mode of distributing the surplus was readjusted, the Bill as it came 
from the draftsmen was, with a few verbal and minor alterations, 
adopted in its entirety. A good number of amendments were moved ; 
but so well had the Constitutional Committee gauged the sense of the 
Convention that these were nearly all defeated. Only 21 divisions 
were taken in all ; and of these only three resulted in favour of a 
modification. 



THE FEDERAL MOVEMENT IX AUSTRALIA. 131 



The framework of the Bill was on the lines which have since 
become familiar by being adopted in all the subsequent stages of the 
movement. It was cast in the shape of a Bill for submission to the 
Imperial Parliament — the few clauses dealing with the establishment 
of the Federation being placed first by themselves, and the Federal 
Constitution itself following as a separate document. The Constitution 
provided for the machinery of a complete central government, with a 
federal legislature, executive, and judiciary. In the matter of nomen- 
clature, the only novelty was the use of the word " Commonwealth," 
which was at first adopted provisionally for want of a better, but 
which was so apt and descriptive, so simple and dignified, that it came 
to stay. It is not too much to say that this grand old word, rich in 
meaning and tradition, and intimately associated with the literature 
and history of the English people, did more to arrest the public atten- 
tion and kindle the public imagination than any other word in the 
English language could have done. For a little while, indeed, it 
jarred upon some ears with a slight revolutionary echo, owing to 
association with Cromwell's Protectorate; but its older and deeper 
meaning soon prevailed, and it stands to-day for the type and the ideal 
of Australian nationhood. For the component members of the union, 
the word "States" was preferred to either "provinces " or "colonies;" 
and for the two Houses of the Federal Parliament the words "Senate'' 
and ''House of Representatives" — sanctioned by the usages of more 
than one English-speaking community — were adopted. 

The ^Lkis Compromises. — The serious " lions in the path " were 
of course the differences of population, and the differences of fiscal 
policy; and accordingly' the chief issues in the Convention were (1) 
between large States and small States, and (2) between a high-tariff 
policy and a low-tariff policy. 

As regards the former question, the necessity of equal represen- 
tation of States in the Senate was conceded from the outset, and Sir 
Henry Parkes, in his preliminary resolutions, had voluntarily offered 
it. This concession was made, however, subject to the definite and 
unequivocal condition that the House of Representatives should have 
the predominating voice in finance and in the control of the executive. 
" I offered voluntarily, as far as I was individually concerned," he had 
said (Convention Debates, 1891, p. 448), "an equal representation to 
Western Australia as either Victoria or New South Wales would have 
in the Senate. But I stipulated that that power which is held by the 
House of Commons should be held by the House of Representatives — 
that is in as effective a way as the words of a written resolution could 
prescribe." But some of the colonies, not content with equal represen- 
tation in the Senate, had claimed equal power for the Senate, and 
rotmd these two standards the real battle of the Convention was 
fought. The draft Bill embodied what was subsequently referred to 
as the "compromise of 1891." The Senate was given equal power 
with the House of Representatives, except that Appropriation Bills and 
Taxation Bills were to originate in the House of Representatives 
alone ; and that the Senate was forbidden to amend Taxation Bills or 
Bills "appropriating the necessary supplies for the ordinary annual 
services of the Government," or to amend any Bill " in such a manner 



132 HISTORICAL INTRODUCTION. 

as to increase any proposed charge or burden on the people." As 
some compensation for these restrictions, the Senate was given, with 
respect to Bills which it might not amend, a power to suggest amend- 
ments. That is to say, the Senate might at any stage return any such 
Bill to the House of Representatives " with a message requesting the 
omission or amendment of any items or provisions therein." As a 
furthef compensation, and as a guarantee to the Senate of some 
measure of " veto in detail," Taxation Bills were to deal with taxation 
only, and with only one kind of taxation; and no extraordinary 
appropriations were to be tacked to the ordinary Appropriation Bill. 
As regards the responsibility of the executive, Sir Henry Parkes' 
original proposition requiring Ministers to sit in Parliament and to 
hold office subject to their " possessing the confidence of the House of 
Representatives, expressed by the support of the majority," was not 
adopted ; but responsible government was indicated by the provisions 
that there should be a "Federal Executive Council" to advise the 
Governor-General, and that the chief heads of departments should 
hold office during the Governor-General's pleasure, should be capable 
of sitting in either House of Parliament, and should be members of 
the Federal Executive Council. The intention was (to quote Sir 
Samuel Griffith's words of a later date) " so to frame the Constitution 
that responsible government may — not that it must — find a place in 
it." 

The compromise with regard to the tariff was of a different kind. 
It was obviously out of the question for the Convention to frame a 
tariff, or even to fix the principles on which the Federal Parliament 
should frame a tariif. Yet the Yictorians were anxious for some 
''guarantee" that their manufacturing interests should not be injured 
by a sudden reversal of their protectionist policy ; whilst the freetrade 
majority of New South Wales were equally afraid that their fiscal 
faith would not be shared by the Federal Parliament. . Sir Henry 
Parkes had always taken the high federal ground that the fiscal ques- 
tion must be left unreservedly and unconditionally to the Australian 
people to decide for themselves. He placed Federation above any 
fiscal policy, and claimed that the other colonies should do the same. 
Vested interests — whether they were the interests of manufacturers 
or the interests of importers and consumers — must be entrusted on 
both sides to the good faith of the Parliament and people whom they 
were about to create. This settlement, which was the only one 
possible, was embodied in the draft Bill. The Federal Parliament 
was given full powers of raising money, not only by customs and 
excise, but by every other mode of taxation; and the only conditions 
imposed upon this power were that federal taxation must be uniform 
in all the colonies, and that, on the adoption of a uniform tariff, trade 
between the colonies should be free. Until the adoption of a federal 
tariff, the provincial tariffs were to remain, not only as against the 
outside world, but as between the States; and after that event the 
power to impose customs and excise was to be vested exclusively in 
the Federal Parliament, though the States were to retain concurrent 
powers of raising money by every other mode of taxation. 

Other Provisions. — For the rest, the Bill will be best described, 



THE FEDERAL MOVEMENT IN AUSTRALIA. 133 

not bj a complete summary of its provisions, but by reference to its 
main points of difference from the Constitution as now enacted. 

Federal Parliament. — The Senators were to be elected by the 
Parliaments of the several States. The number from each State was 
fixed at eight ; and equal representation was conceded, not only to 
original States, but to all the existing colonies. In the House of 
Representatives, each State was to have one member for every 30,000 
of its people; but this quota was alterable by Parliament. Each State 
was to have a minimum of four representatives. There was no ratio 
fixed between the number of members of the two Houses ; the size of 
the Senate depending upon the number of States, whilst the size of 
the House of Representatives would depend upon the quota fixed by 
the Constitution or by Parliament. Each State was to determine its 
own electoral divisions, and was to elect its members upon its o^ti 
provincial franchise. Plural voting was not prohibited, and the 
Federal Parliament was not empowered to frame a uniform franchise. 
There was no express provision for the settlement of deadlocks between 
the two Houses. 

The legislative powers of the Federal Parliament were substan- 
tially the same as at present, with the following exceptions : — Astro- 
nomical and meteorological observations, insurance, invalid and old 
age pensions, conciliation and arbitration, and the acquisition of pro- 
perty for public purposes, were not included. In the "banking" 
sub-clause there was no exception of State banking. The river 
question was only represented by a power to legislate as to "river 
navigation with respect to the common purposes of two or more 
States, or of the Commonwealth." There was no clause pro%nding for 
the acquisition of State railways, or railway construction and exten- 
sion ; but the power to make laws for the control of railways " with 
respect to transport for the purposes of the Commonwealth " was not 
limited, as it now is, to "naval and military purposes." 

Federal Supreme Court. — The Federal Supreme Court was not 
established by the Constitution itself, but was left to be established by 
the Federal Parliament. The form of the judiciary clauses was some- 
what different from what it is now ; but the only important difference 
of substance was with regard to appeals. Not only was the Supreme 
Court given a general jurisdiction to hear appeals from the Supreme 
Courts of the States, but Parliament was empowered to abolish, in 
part or in whole, the existing right of appeal from the State Courts 
direct to the Privy Council. The judgment of the Supreme Court was 
made final in all cases ; except that the Queen might, " in any case in 
which the public interests of the Commonwealth, or of any State, or of 
any other part of the Queen's dominions are concerned," grant leave 
to appeal to the Privy Council. 

Finance. — With regard to finance, the question which gave the 
Committees the most trouble was the basis of apportionment of surplus 
revenue among the States. It was recognized that the customs 
revenue must be collected by the Commonwealth; but as it was decided 
that the Commonwealth was not, at the outset, to be saddled with the 
public debts of the States, it was soon seen that only a fraction of the 
revenue would be needed for federal expenditure, whilst the States 



13+ HISTORICAL INTRODUCTION. 

would require much of it to meet their own expenditure. " The great 
difficulty" (said Sir Samuel Griffith in introducing the Bill) — "'and it 
IS a difficulty peculiar to this Constitution, so far as I have any know- 
ledge — is that the customs revenue of the colonies in all cases forms a 
very large share of the means of meeting the expenses of government; 
and as we should take over only a very small part of the expenditure, 
the Commonwealth would start with an enormous annual surplus of 
many millions, which it could not retain or expend, but must return to 
the different States. That is a difficulty almost as great as the difficulty 
of making a levy upon the different States as States. It is a great 
difficulty, but we have to face it, and the question is, what is to be 
done ?" (Conv. Deb., Syd., 1891, p. 528.) Should revenue be credited 
to the several States in proportion to their populations, or in propor- 
tion to their contributions ? Should expenditure be charged against 
the several States in proportion to their populations, or on the basis 
of services rendered ? So far as revenue was concerned, the popula- 
tion basis of adjustment seemed the most federal, but not the most 
fair. Statistics showed that the consumption of dutiable articles 
varied greatly in the different colonies, and it was anticipated that 
even under a uniform tariff considerable differences might continue. 
The contribution basis seemed fairer, but less federal; and it was 
open to the objection that with intercolonial freedom of trade it would 
be difficult to ascertain accurately what share of dutiable articles was 
consumed in each State. 

Here, at the outset, was the whole financial difficulty which was 
afterwards to cause so much trouble. The recommendation of the 
Finance Committee had been as follows : — " That after a uniform tariff 
has come into operation, the surplus revenue may fairly be distributed 
amongst the various colonies according to population; but as the 
duties contributed by the various colonies are so unequal, it would be 
unfair at the present time to distribute the surplus on this basis; it is, 
therefore, recommended that the revenue from customs and excise be 
devoted, first, to the payment of all expenditure authorized by the 
Federal Grovernment, such expenditure to be charged to the several 
colonies according to population ; the balance to be returned to the 
colonies in such a way that the amount paid by each colony for such 
federal expenditure, added to the amount returned, shall be, as nearly 
as can be ascertained, the total amount contributed by each colony on 
the dutiable articles consumed." (It seems that the resolution had 
originally run "that some time after," &c.; but the words "some time" 
were eventually omitted. See Conv. Deb., Syd., 1891, p. 814.) 

In other words, the Committee recommended that the federal 
expenditure, both before and after the uniform tariff, should be 
charged against the colonies in proportion to population. The revenue, 
however, was to be credited differently for the two periods. As long 
as the provincial tariffs remained in force, each State was to get back 
the amount of its contribution, subject to a deduction of its population 
share of the federal expenditure. But as soon as the uniform tariff 
came into force, and the border custom-houses disappeared, the 
"contribution" basis was to be done away with, and population was 
to be the basis for distributing revenue as well as for charging 
expenditure. 



THE FEDERAL MOVEMENT IN AUSTRALIA. 135 

The Constitutional Committee, however, in framing the Bill, 
departed altogether from these recommendations. They provided 
that the federal revenue, both before and after the uniform tariff, 
should be applied in the first instance to paying the federal expendi- 
ture, and the surplus should be returned to the several States "in 
proportion to the amount of revenue raised therein respectively," 
subject to certain provisions that taxes should be " taken to be 
collected " in the State where the dutiable articles were consumed ; 
or, in the case of direct taxation, where the taxable property was 
situated. In other words, they cut the " population " basis out 
altogether, and made "contribution" the basis, not only for distri- 
buting the surplus, but also for charging expenditure — and after as 
well as before the uniform tariff. 

Trade and Commerce. — As to trade and commerce, the only pro- 
visions explanatory of the federal power (in addition to the clause as 
to " river navigation " already mentioned) were two short clauses ; 
one, copied from the United States Constitution (Art. I., sec. ix., 5), 
forbidding any preference to be given to the ports of one State over 
those of another; and the other empowering the Federal Parliament 
to annul State laws derosratinor from freedom of inter-state trade. 
The questions of preferential railway rates, and of the possible conflict- 
ing claims of river navigation and irrigation, were as yet only vaguely 
recognized as difficulties, and no attempt was made to define the basis 
of a settlement. 

Federal Capital. — The federal capital was left to be determined 
by the Federal Parliament ; and until such determination, the Parlia- 
ment was to meet at such place as should be appointed by a majority 
of the Grovernors — or, if they were equally divided, by the Governor- 
General. 

Amendment. — The mode prescribed for the amendment of the 
Constitution introduced the American principle of ratification by 
elected State Conventions — not, as now provided, by the electors 
directly. Any law for amendment was first to be passed by an abso- 
lute majority of both Federal Houses, and then submitted to Conven- 
tions chosen in each State on the Parliamentary franchise; and if 
approved by Conventions of a majority of the States, it was to become 
law, subject to the Queen's power of disallowance. 

Summary. — The foregoing sketch shows that in the first draft of 
1891 the whole foundation and framework of the present Constitution 
■was contained. Its general characteristics, as compared with the 
Constitution as it now stands, may be summed up in a few words. In 
the first place — as is natural in a first draft — it followed more closely, 
in substance and in language, the literary models — American, Cana- 
dian, and Australian — which were available to the Convention. In 
the next place, it was in some few respects less essentially democratic 
in its basis — a circumstance which is also natural, in view both of the 
continuous development of democratic ideas, and of the more 
completely popular impulse of the later stages of the federal move- 
ment. And lastly, it was less definite and less elaborate in its treat- 
ment of some of the vexed problems — problems which had not yet 
been the subject of exhaustive discussion, and some of which had only 



136 HISTORICAL INTRODUCTION. 



been mooted in vague and general terms. The peculiarities of our 
railway development, the unique characteristics of our river S3''stem, 
the special difficulties arising out of our tariif policies and require- 
ments, had not yet been adequately studied. 

The constitutional problem of reconciling the representation of 
State interests with British principles of legislation and finance — of 
bringing into harmony the conflicting elements of State rights and 
interests on the one hand, and of national rights and interests on the 
other — in short, of securing responsible government, legislative finality, 
and the general predominance of the House of Representatives, with- 
out " killing Federalism," was as yet incompletely solved. All these 
things were inevitable at the first attempt to grapple practically with 
the question. But in spite of imperfections, the first draft stands as a 
convincing monument of the wisdom, the statesmanlike ability, and 
the patriotism of its f ramers. In those few days they laid down the 
main lines from which the movement has never since wavered. On 
2nd March, 1891, Australian Federation was a misty abstraction; on 
31st March it had definite outlines and a practical policy. 

Commonwealth Bill in Committee. — The Bill was brought up by 
the Constitutional Committee on 31st March, and a short "second 
reading " debate took place on Sir Samuel Griffith's motion to refer it 
to Committee of the Whole. The Convention was anxious to get to 
close quarters with the Bill, and the only members who followed Sir 
Samuel Griffith in the general debate were Mr. Wrixon, Mr. Baker, 
and Mr. Inglis Clark. Mr. Wrixon's speech was specially remarkable 
for its almost prophetic insight into the modifications that would be 
necessary before the Bill could be wholly acceptable; reading his 
criticisms, it is hard to believe that they bear so early a date as 1891. 

The motion to go into Committee was passed, and from 1st to 8th 
April the Convention was occupied with the discussion of the clauses 
of the Bill. The debates of those days are interesting, as being the 
first discussion in public of the details of the proposed Constitution. 
The amendments carried were few, and in most cases unimpoi'tant ; 
but a good deal of light is thrown on the views of the Convention by 
some of the proposals that were rejected — and also by the lack of 
debate on some questions which afterwards assumed prominence. 

The word "Commonwealth," though somewhat apologetically 
supported, was retained on division by a large majority ; none of the 
alternative suggestions — such as " Federated States," " Federation," 
"United Australia" — finding many friends. An amendment moved 
by the veteran democrat, Sir George Grey, for the purpose of provid- 
ing that the Governor-General should be elected by the Australian 
people, was sympathetically received, but summarily dealt with ; and 
a tentative amendment by Mr. Baker, to define in a schedule some of 
the powers and functions pf the Governor-General, was withdrawn 
after a short debate on the question of ministerial responsibility. 

Election of Senators. — In place of the provision for the election 
of Senators by the State Parliaments, Mr. Kingston proposed to leave 
each State free to elect its own Senators in its own way. He argued 
that uniformity was not attained by the clause as it stood, because the 
various Upper Houses, which would share in the election, were not 



THE FEDERAL MOVEMENT IN AUSTRALIA. 137 

uniformly constituted. If uniformity were the all-important thing, he 
would have preferred to prescribe direct election by the people in 
large constituencies ; but the chief consideration was to satisfy the 
several States. The proposal, however, was negatived by a large 
majority. The Convention felt that a want of homogeneity in the 
Senate would be undesirable ; and as the alternative system of uniform 
election by the people did not as yet find enough favour to be worth 
proposing, the American plan was adhered to. 

Federal Franchise. — The franchise for the House of Representa- 
tives was the subject of two unsuccessful amendments, for which the 
hour was not yet ripe. Dr. Cockburn moved an amendment to forbid 
property qualifications, and to give each elector a vote only for one 
electorate — in other words, to embody the principles of manhood 
suffrage and " one man one vote." And Mr. Barton moved an amend- 
ment to allow the Parliament to prescribe a uniform federal franchise. 
" It does seem to me," he said, " that if you are going to trust the 
Parliament of the Commonwealth at all, you must trust it to fix its 
own franchise." Both these amendments, though they received some 
support, met with much opposition. The suggestion that either the 
Federal Constitution or the Federal Parliament should meddle with 
the franchise — though only for federal purposes — was criticized as an 
invasion of State rights ; and though this argument was answered, it 
prevailed. Mr. Gillies appealed to the Convention to " abandon these 
fads," for which there was no practical necessity, and which would 
throw difficulties in the way of Federation. Mr. Barton's amendment 
was put first and negatived without di>asion; and Dr. Cockburn's was 
then defeated on division by 28 votes to 9. 

Trade and Commerce. — The clause defining the powers of the 
Federal Parliament opened up several questions of which more was 
afterwards to be heard. On the " trade and commerce " sub-clause, 
Mr. Gordon — confessedly with an eye to South Australian interests in 
the Broken Hill trade — asked whether the power to regulate trade 
and commerce gave any authority to regulate railway rates on inter- 
colonial lines. Mr. Clark argued that the American interpretation 
showed that the clause implied considerable power of control; but Mr. 
Gordon asked that the powers intended should be definitely given, 
and announced his intention of framing a sub-clause for the purpose. 
Sir Samuel Griffith feared there was no middle course between grivingr 
the Commonwealth complete " control of railway tariffs," and leaving 
the States to do as they liked; and said that the only federal control 
which the Constitutional Committee had seen fit to recommend was 
contained in the clause empowering the Federal Parliament to annul 
State laws " having the effect of derogating from freedom of trade or 
commerce" between the States. Mr. Donaldson sugrorested that the 
real solution both of the "differential rates" problem and of the 
" distribution of surplus " problem was to federate the debts and rail- 
ways. The discussion was merely a preliminary one, and no amend- 
ment was proposed in the sub-clause ; but shortly afterwards Mr. 
Gordon proposed a new sub-clause giving the Federal Parliament 
power to regulate railway traffic and traffic charges where required 
*' for freedom of trade and commerce, and to prevent any undue 



138 HISTORICAL INTRODUCTION. 

preference to any particular locality within the Commonwealth, or to 
any description of traffic.'^ These words were criticized as being much 
too wide, and as giving the Federal Parliament excessive powers of 
interfering with State railway management. It was argued that so 
lono- as the States retained the financial responsibility over the rail- 
ways, they must retain full control except so far as their action might 
interfere with the federal principle. Mr. Deakin pointed out that 
rates which " derogated from freedom of trade " were already pro- 
hibited ; and Mr. McMillan argued that differential rates which did 
not so derogate might be perfectly legitimate. There was a general 
agreement that some kinds of differential rates should be prohibited, 
but no satisfactory clause could be suggested ; so Mr. Gordon's 
amendment was negatived. A similar fate befell a clause proposed by 
Mr. Clark to prevent " discriminating rates " which gave a preference 
to any locality, or any description of traffic ; and the " trade and com- 
merce " power was left unexplained, save for the " derogation " clause. 
Rivers. — The river question also raised some debate. The Finance 
and Trade Committee — foreseeing that federal control might be needed 
for other purposes than navigation — had recommended a federal legis- 
lative power as to " Intercolonial rivers and the navigation thereof;" 
but the Constitutional Committee had cut this power down to " River 
navigation with respect to the common purposes of two or more 
States." Mr. McMillan argued that federal powers with regard to 
the use of the water for irrigation and conservation should be added ; 
and accordingly Sir Samuel Griffith moved tentatively to insert the 
words " and conservation of water." This was objected to as affecting 
property and riparian rights ; though on the other hand it was argued 
tsy Mr. Deakin that powers of conservation for the purpose of main- 
taining and improving navigability were conferred by the clause as it 
stood. Discussion showed that the question was too difficult to be 
dealt with off-hand, and the amendment was withdrawn. 

Powers of Senate. — The chief debate, however, was on the vexed 
question of the powers of the Senate. When the clause embodying 
the Committee's compromise on this matter was reached, Mr. Baker at 
once raised the whole question by submitting an amendment for the 
purpose of giving the Senate absolutely co-equal powers with the 
House of Representatives. Dr. Cockburn supported him, on the broad 
ground that " the principle of Federation " required, not merely equal 
representation in the Senate, but the equal power of both Houses ; 
and that centralization was incompatible with, and State-rights were 
essential to, a real democracy. This doctrine was upheld, more or 
less, by most of the representatives of the small States ; whilst, apart 
altogether from the question of State-rights, the principle of a strong 
Upper House was favoured by the more Conservative representatives, 
not only of the small States, but of New South Wales as well. Both 
these aspects were vigorously combated by the solid phalanx of 
Victorian representatives, by Sir Henry Parkes and others for New 
South Wales, and by Mr. Playford for South Australia. Mr. Deakin 
denounced the combination of " reactionary radicals and iconoclastic 
conservatives " who would place an absolute veto in the path of the 
people. Mr. Munro warned the Convention that the clause as it stood 



THE FEDERAL MOVEMENT IN AUSTRALIA. 139 



was the utmost limit of compromise which Victoi-ia would accept. 
Adherence to the compromise reached was urged bj Sir Samuel 
Griffith for Queensland, by Mr. Bird for Tasmania, by Mr. Playford 
and Mr. Kingston for South Australia, by Mr. Hackett for Western 
Australia. From large States and small States alike came the appeal 
"keep to the compromise;" and the amendment was defeated on 
division by 22 votes to 16. Mr. McMillan then moved an amendment 
with the object of giving the Senate full power to amend, in the first 
instance, all Bills except Appropriation Bills ; but forbidding it to 
amend Taxation Bills a second time. This also was rejected. 

Mr. Wrixon, however, feared that even the power of suggestion 
might lead to deadlocks ; and to guard against this he put forward 
an embryo " deadlock provision," to the effect that if a " suggestion " 
of the Senate were declined by the House of Representatives, the 
Senate might request a joint meeting of the two Houses, at which a 
majority should decide. It should be noticed that this proposition 
was fundamentally different from the joint sitting as now embodied in 
the Constitution. It was only available to deal with suggestions by 
the Senate — the precise subject which a joint sitting is now forbidden 
to consider. The suggestion failed to find favour with the friends of 
either House. It was criticized as dangerous and " mechanical," and 
was negatived with little debate. 

Besponsible Government. — With regard to the Executive Govern- 
ment, the only debate of importance arose on the question of the best 
words in which to suggest the responsibility of Ministers. The Bill 
as drafted provided that the chief departmental heads should be 
members of the Federal Executive Council ; to which Mr. Wrixon 
proposed to add, " and responsible Ministers of the Crown," The 
word " responsible," however, was criticized as being of uncertain 
meaning; and on Sir Samuel Griffith's suggestion the phrase " the 
Queen's Ministers of State for the Commonwealth " was adopted. 

Finance. — The finance clauses gave rise, not only to an important 
debate, but to some important alterations. The " contribution " basis 
of apportioning expenditure and revenue came in for severe criticism, 
and the members of the Finance Committee wanted an explanation of 
the reasons why their recommendation had been departed from. So 
far as expenditure was concerned, no satisfactory explanation was 
forthcoming, except that Sir Samuel Griffith and some others seemed 
to think there would be some inconsistency in charging expenditure 
against the several States on a different basis from that on which 
revenue was credited. This idea, however, was demolished by Sir 
Thomas Mcllwraith, on whose motion an amendment was carried pro- 
viding that federal expenditure, from the outset, should be borne by 
the several States in proportion to population. The apportionment of 
revenue caused more difficulty. Sir John Bray objected to the " con- 
tribution " basis, as requiring an account to be kept of the ultimate 
destination of dutiable goods, and argued that as soon as a federal 
tariff was adopted, revenue ought to be credited on the basis of popu- 
lation. " We ought to assume " he said " that any uniform customs 
tariff that bears fairly on the inhabitants of Australia will result in the 
inhabitants of each colony paying the same per head pro rata as the 



140 HISTORICAL INTRODUCTION. 



inhabitants of Australia generally pay." Sir Thomas Mcllwraith and 
Sir Samuel Griffith were prepared to admit that there might ultimately 
be an approximation to equality, but argued that for many years to 
come there would be inequality of contribution, and that meanwhile 
the population basis would be unfair. Mr. McMillan agreed that 
there would be some inequality of incidence, but was inclined never- 
theless to favour the population basis as being the most federal. 
However, he suggested a compromise ; to leave the contribution basis 
in force, after the adoption of a federal tariff, until the Federal 
Parliament should decide to alter it. This suggestion found favour 
and was adopted. The Convention recognized that the Federal 
Parliament, with experience of the working of a federal tariff, would 
have a solid foundation to build upon, which was lacking to the Con- 
vention. Some figures had indeed been prepared by the statisticians 
as an estimate of what each colony would contribute under different 
tariffs — the Victorian tariff being taken as the basis of one estimate, 
and an " imaginary tariff " of fixed duties on narcotics and stimulants, 
with an all round ad valorem duty of 13 per cent, on other imports, as 
the basis of another. These figures had been before the Finance Com- 
mittee, but were not printed with its report ; and they were the cause 
of some skirmishing in the Convention, being alluded to by their 
friends as the " suppressed tables " and by their critics as " imaginary 
tariffs." In fact the battle of statistical forecasts, which was after- 
wards to be the fiercest fight of all, had its small beginnings in this 
debate. 

But though the problem of the distribution of the federal surplus, 
had been thus dealt with, the Convention was awake to the difficulties 
and dangers which might arise from the fact that the revenues con- 
trolled by the federal government would be immensely greater than 
the liabilities imposed upon it. Some need was felt of a " guarantee " 
that this surplus revenue would not be wastefully expended, but would 
be applied to the necessary purposes of the State Governments. Any 
such guarantee must be based on one of two principles — either an 
obligation on the Commonwealth to return some part of its revenue ta 
the States, or an obligation to take over some of the liabilities of the 
States. The former plan was not mooted at all in 1891 ; but the 
latter one came up in the shape of a proposal by Sir John Bray to 
make the Commonwealth liable for the existing public debts of the 
States — each State being in turn liable for the amount (if any) by 
which its debt exceeded a fixed sum per head of its population. 
There was a disposition on the part of the Convention, however, to 
think that this was going too far. Some of the delegates thought that 
the debts ought not to be handed over without the " assets " which 
they represented ; and though Mr. Bird pointed out that the federal 
revenue powers were a sufficient asset, the argument that the debts 
ought not to be separated from the reproductive works in which they 
were sunk carried great weight. But over and above this, the pro- 
posal was unpalatable to New South Wales for a reason which was 
only hinted at, but which probably was the deciding factor. To saddle 
the Commonwealth with the interest on the public debts would 
practically have meant imposing on the Federal Parliament the duty 



THE FEDERAL MOVEMENT IN AUSTRALIA. 141 

of raising a large amount through the Customs, and would have placed 
the freetrade party at a disadvantage in federal politics. It was seen 
that the amendment touched on dangerous ground, and it was accord- 
ingly negatived without division. 

State Governors. — The clauses relating to the Governors of States 
gave some trouble, and showed a marked difference of opinion. The 
clause providing that communications between the State Governors 
and the Queen should be made through the Governor-General was on 
the one hand approved as a necessary consequence of the unity of 
Australia as regards the outside world ; it was objected to on the 
other hand as a wanton interference with matters of purely State con- 
cern. On division, the clause was carried by a small majority. The 
clause providing that " in each State of the Commonwealth there 
shall be a Governor " was criticized as an unnecessarv and inadvisable 
dictation to the States. Sir Samuel Griffith had no definite apology 
for the clause, except the somewhat unsatisfactory suggestion that it 
indicated that the States were sovereign ; however, it was retained. 
Finally, the clause giving the Parliament of each State power to 
determine the mode of appointment of its Governor, and his tenure of 
office, was objected to as another unnecessary interference ^vath the 
State Constitutions, and supported on the other hand as being merely 
the gift of a discretionary power. On division, the clause was carried 
by a majority of one. 

Amendment. — In the clause dealing with the amendment of the 
Constitution, several members pointed out that the provision for 
ratification by " Conventions of a majority of the States " gave a 
second veto to the States, but none to the people as a whole. Sir 
Samuel Griffith admitted the force of the argument, and proposed to 
add a requirement that the people of the affirming States must contain 
a majority of the people of the Commonwealth. Mr. Playford pointed 
out that this was a clumsy contrivance, and that the whole difficulty 
arose from the false principle of taking the voice of the people in- 
directly through Conventions instead of directly at the polls. He 
advocated the Swiss plan of a referendum, requiring the assent of a 
majority of the people, and separate majorities in more than half the 
States. This view was supported by Dr. Cockburn and Mr. Deakin ; 
but an amendment to that effect moved by Dr. Cockburn was defeated 
by a large majority, and Sir Samuel Griffith's suggestion was adopted. 

The Committee stage ended with Mr. Dibbs' "bomb-shell" — an 
amendment providing that the site of the federal capital, instead of 
being left for the Federal Parliament to determine, should be fixed at 
Sydney. This was promptly rejected by 26 votes to 4 — Mr. Dibbs 
alone, of the New South Wales deleofation, voting" for it : and the Bill 
was reported with amendments. 

Adoption of the Bill. — A short debate then followed on a motion 
by Sir Samuel Griffith that the Bill as reported from the Committee 
be adopted by the Convention. The debate showed that, on the 
whole, the Convention were satisfied with their work. Sir Henry 
Parkes thought it " a wise, temperate, and successful compromise,'* 
and ventured upon the prophecy that all the colonies would accept it. 
At the same time, he warned his hearers of the opposition to be ex- 



142 HISTORICAL INTRODUCTION^. 

pected from opponents of Federation outside the Convention. "We 
may be sure/^ he said, "that the Bill will meet with perhaps virulent 
opposition. We know with what violence of feeling, with what 
violence of expression, every great work at every period of history has 
been assailed by those who were opposed to it, and still more by those 
who assailed it for no reason at all, and under no guidance that could 
be intelligible," He reminded them that already they had been 
accused of "giving away the liberties of New South Wales," of 
" giving the lands," of " giving up the control of the inland rivers ; " 
and similar accusations would probably be made against the repre- 
sentatives of the other colonies. But in spite of the " anathemas 
hurled at us by certain people out of doors," and based either upon 
ignorance or upon wilful misrepresentation, he expressed his firm 
belief that the Bill would be ratified. And even assuming the con- 
trary — assuming that the day of Federation had not yet come — " it 
cannot," he said, " be far off ; and whenever the time comes, this 
admirably-drawn Bill, so clear, so instinct with a spirit of well- 
ordered liberty, so instinct with a true appreciation of stable and 
sober laws, so pervaded by the very spirit of toleration and 
mutual consideration — come whenever that time may, this Bill must 
be in the foundation of the edifice of federal liberty. It can never be 
forgotten, it can never be depreciated, it can never be made less than 
it is to-day ; and supposing another Constitution should be framed by 
other men, to a very large extent the provisions of this Bill must be 
embodied in that Constitution, so that this Convention has breathed 
into this Bill the breath of an immortal life." Other delegates spoke 
more critically, but no less hopefully. Mr. Baker and Dr. Cockburn, 
from the small State point of view, regarded the Bill less cheerfully. 
Sir John Downer feared that the powers of the Senate were defined 
in words which were designedly ambiguous, and would lead to discord. 
Sir George Grey lamented that plural voting was not abolished. But 
doubts and fears were over-borne by the general chorus of satisfaction. 
Nearly every member was prepared, on the whole, to accept the Bill 
as it stood, as a good Constitution and a fair compromise ; and it was 
adopted by the Convention Avithout division. 

Thk Mode of Submission. — The draft Constitution having been 
passed, the next thing to consider was what steps should be taken to 
secure its acceptance by the several colonies. Sir George Grey had 
already, immediately the Committee stage was over, moved a resolution 
that it should be " submitted to and adopted by a majority of a 
plebiscite of the people of Australia." This had been objected to as 
inconsistent with the idea of a voluntary acceptance by each individual 
colony, and Sir George had accepted an amendment providing for a 
plebiscite in each separate colony ; but the motion as amended was 
rejected. As soon as the Convention had adopted the Constitution, 
Sir Samuel Griffith moved " That this Convention recommends that 
provision be made by the Parliaments of the several colonies for sub- 
mitting for the approval of the people of the colonies respectively the 
Constitution of the Commonwealth of Australia as passed by this 
Convention." He argued — and the Convention as a whole agreed 
with him — that it was not for them to dictate to the colonies the 



THE FEDERAL I^tOVEMENT IN AUSTRATJA. Uu 

manner in which they should accept the Constitution ; all they could 
do was to refer that question to the several Parliaments. The ques- 
tion arose, however, whether the Constitution ought to be submitted 
to some ratifying body to accept or reject as a whole, or whether 
opportunity ought to be allowed for further reconsideration of its pro- 
visions. Most of the members were very averse to any re-opening of 
the decisions arrived at by the Convention. The work of the Con- 
vention had involved compromise and concession, and they feared 
that to allow each colony to pick it to pieces in its own interests, and 
undo all that had been done, would lead to endless confusion and 
delay. A few voices, however, were raised to urge them to "hasten 
slowly." Sir John Bray suggested consideration in detail by the 
Parliaments, and a second Convention, if necessary, to harmonize 
differences. To prevent the colonies from thinking that the Bill was 
being "crammed down their throats" he moved to substitute "con- 
sideration " for " approval." Mr. AYrixon supported the amendment, 
arguing that " this subject comes down on the people from above," 
and that a few years' delay was nothing compared with the importance 
of thorough consideration. The amendment, however, only secured, 
seven supporters, and Sir Samuel Griffith's resolution was carried. 
It was followed by a further resolution recommending that as soon as 
the Constitution were adopted by three colonies, the Home Government 
should be requested to take steps to establish it in respect of those 
colonies. After some complimentary resolutions. Sir Henry Parkes, 
on 9th April, 1891, declared the Convention dissolved. 



(8) THE FATE OF THE COMMONWEALTH BILL OF 1891. 



Reception of the Bill. — The framing of the Commonwealth Bill 
marked a notable advance in the movement. In place of vague 
abstractions, federationists had now a definite rallying ground, anti- 
federationists a definite line of attack. Advocacy and criticism 
became at once more direct, more circumstantial, more practical. The 
text of the Bill itself obtained a wide circulation, and was studied 
and preached upon by politicians of every class and type, by the 
metropolitan and provincial press, by debating societies, and political 
associations. An annotated edition, in pamphlet form, by Mr. G. B. 
Barton, was issued from the Government Printing Office of New 
South Wales: and the idea of Federation besran to assume a definite 
shape in the minds of the people as a whole. Federation had long 
been in the air ; it now came down to the earth. It had long been 
dreamed of, and sung of, as a destiny one day to be realized ; it now 
could be examined and analyzed as a practical political scheme. 

There can be no doubt that many members of the Convention 
had hoped that the work of construction was complete, and that the 
Bill as it stood might be adopted without delay as the Federal Consti- 
tution of Australia. But they were doomed to disappointment. It 
soon became clear that neither the Parliaments nor the people would 
accept the work of the Convention as final. The Parliaments, natur- 



144 HISTORICAL INTRODUCTION. 

ally enough, resented the idea that a constitutional change of such 
vast importance should be effected without their having any voice in 
the details of the scheme. And in the minds of many of the people 
there was a vague feeling of distrust of the Constitution, as the work 
of a body somewhat conservative in composition, only indirectly repre- 
sentative of the people, and entrusted with no very definite or detailed 
mandate even by the Parliaments which created it. The consequence 
was that while the Bill received unstinted praise in some quarters, it 
was subjected to unsparing criticism in others. 

One circumstance in particular swelled the chorus of discontent, 
especially in New South Wales — the colony which was thenceforth to 
be the main battle-field of the movement. The "new democracy" 
was just then trying its wings. In 1891 the Labour Party made its 
first appearance in the Parliament of New South Wales, with great 
zeal for reform, with constitutional theories of its own, but with scanty 
political experience. To this party and its constituents the draft Con- 
stitution seemed to bristle with imaginary dangers. It conferred 
" enormous powers " on the Governor-Greneral ; it was steeped in 
" Imperialism ; " it meant the crushing of the workers by a " military 
despotism." These unreal terrors had much to do with the want of 
enthusiasm for Federation displayed at that stage by the Labour 
Party and its adherents. 

Of course, however, there were other and less flimsy grounds of 
opposition. The Constitution was a compromise, with the faults as 
well as the merits of a compromise; the federal principles it contained 
were new to Australia, and their application to neAv circumstances 
gave room for much difference of opinion. In the large colonies, the 
composition and powers of the Senate were especially criticized. 
Equal representation, the poAver to suggest amendments in money 
bills, the absence of any provision for solving deadlocks, were in turn 
condemned and defended. The inadequacy of the financial provisions 
— the possibility that, under the trade and commerce power, trade 
might be unfairly diverted from one colony to another — the risk that 
the federal tariff might be too protective, or not protective enough — 
these and many other questions of constitutional principle and pro- 
vincial interest were raised and debated. 

Delay in New South Wales. — New South Wales was expected 
to take the lead in dealing with the Bill; and when Parliament 
opened on 19th May, the Governor's speech announced that no time 
would be lost in submitting a resolution for that purpose. On the 
same day Sir Henry Parkes gave notice of the following resolutions: — 

" That this House reaffirms its opinion in favour of the Federation 
of the Australian colonies, and taking into consideration all the cir- 
cumstances of the constitution of the National Convention which met 
in Sydney in March last, as a duly authorized body appointed by all 
the Parliaments of Australia, and having due regard for the diflEiculties 
and the necessity for compromise in reconciling conflicting interests 
and coming to a common ground of agreement, it hereby approves of 
the scheme for an adequate Federal Constitution embodied in the 
draft Bill of the Convention. But it reserves to itself the right to 
propose amendments, to be fully set forth by the proposer in each case 



THE FEDERAL MOVEMENT IN AUSTRALIA. 145 

in a schedule, and to be fully considered, if deemed advisable, by 
another Convention similarly constituted, and in like manner repre- 
senting all the colonies. 

" 2. That this House is further of opinion that the question, as 
dealt with by this Parliament, should be submitted to the people in 
their electoral capacity for final approval." 

The somewhat elaborate and argumentative form of these resolu- 
tions, and the haste to give notice of them before the debate on the 
Address in Eeply, were strategic devices to answer in advance the 
expected attack. The attack came from Mr. G. H. Reid, who moved 
an amendment on the address, to the effect that the House recognized 
the distinguished ability and zealous labours of the Convention, and 
was desirous of federal union "on principles just to the several 
colonies," but affirmed that the Bill was not just "in some important 
respects, two of which we desire to indicate, namely : — (1) The powers 
over revenue, taxation, and expenditure conferred on the proposed 
Senate ; (2) the rejection by the Convention, and the omission from 
the Bill, of responsible government as a necessary part of the Consti- 
tution." The amendment also complained that the federal power of 
legislative interference with the general commercial management of 
the railway and river systems, without any provision for assuming 
obligations in respect of them, was not founded upon just principles. 
In the course of his speech, Mr. Reid laid great stress on the danger 
to which the freetrade policy of New South Wales would be exposed 
by Federation. He compared New South Wales to a teetotaler who 
contemplated keeping house with five drunkards. " I will not put my 
principle of freetrade," he said, " in the power of the Victorian pro- 
tectionists." He resented any attempt to " cram this Bill down the 
throats of Parliament," but at the same time expressed himself ready 
to accept the right kind of Bill. The amendment was negatived on 
division by a substantial majority. 

Sir Henry Parkes, however, was not destined to move the reso- 
lutions of which he had griven notice. The House was within eight 
months of expiry by effluxion of time, and the Ministry were anxious, 
for obvious political reasons, not to neglect "urgent local legislation" 
for the sake of what their opponents termed the "fad" of Federa- 
tion. Then came a motion of censure, resulting in an equal division ; 
and on 6th June the Assembly was dissolved. 

The new Parliament met in July, with the new element — the 
Labour Party — some 30 strong in a House of 141. The new party 
cared little for Federation, and less for the Convention Bill ; they were 
elected to secure "urgent provincial legislation" in the interests of 
their fellow-workers. They supported the Government; and the 
Government on its part consented to place Federation third on the 
programme — where it remained until the defeat and resignation of the 
Ministry in October. Some weeks previously to this event, a debate 
had occurred which throws some light on the attitude of the New 
South Wales Assembly at that time towards Federation. Mr. Henry 
Copeland, on 1 st September, moved a resolution in favour of a pro- 
tective tariff. Mr. Barton moved an amendment to the effect that 
inasmuch as the anticipated federal union would bring about a common 

10 



146 HISTORICAL INTRODUCTION. 

fiscal policy for all Australia, and as meanwhile the co-operation of all 
parties was necessary in securing urgent legislation, "the financial 
requirements of the colony, rather than the rigid doctrines of any 
system of political economy, should regulate the mode of raising 
any further revenue through the Customs." During the debate, the 
labour party reiterated their demand for "useful legislation," and did 
not commit themselves to any particular federal views ; though they 
would support Federation on their own lines. Mr. Reid expressed 
himself confident that Federation would not come soon, " because 
the position taken by several of the smaller colonies, on certain 
points, is so firm, that the inevitable amendments that will be effected 
in this House, and which have already to some extent been effected in 
Victoria, will put off any agreement on the subject for a long time to 
come." Though there was actually a majority of protectionists in 
the House, the direct protectionist vote could not be carried. Sincere 
Federalists on both sides of the House were prepared to forego the 
fiscal fight for the sake of Federation ; the greater part of the labour 
party were prepared to do the same for the sake of social legislation; 
so that the two new issues of Federation and Labour combined, for the 
time being, to keep the fiscal issue in check. In the end, Mr. Barton's 
amendment to the resolution was carried, and the resolution as 
amended was then defeated. 

Victoria. — Meanwhile the Parliaments of Victoria, South Aus- 
tralia, and Tasmania had attempted to make some progress with the 
discussion of the Commonwealth Bill. On 30th June, Mr. Munro, in 
the Victorian Assembly, moved a resolution "That this House 
approves generally of " the Bill ; it being understood that there would 
be an opportunity afterwards for consideration in detail. The general 
debate extended over eight sitting days, and showed the House on the 
whole to be distinctly favourable, though there was a determined 
section of critics led by Sir Bryan O'Loghlen, who were for insisting 
on the principle of " one man one vote " as a condition precedent, and 
complained bitterly of the excessive powers of the Senate. The manu- 
facturing interests had long been eager for Federation, for the sake of 
wider markets, and were prepared to take their chance with the com- 
petition of the other colonies ; but the farming and agricultural 
interests, though not anti-federal, were always fighting for more pro- 
tection against intercolonial produce, and especially for an increase of 
the stock-tax. The resolution having been carried, the discussion in 
Committee began on 21st July, and lasted until 27th August, extend- 
ing over nine sitting days. Many amendments were proposed — mostly 
by Sir Bryan O'Loghlen — but few were carried. The most notable 
amendment made was the striking out of the Senate's power to 
suggest amendments in money bills ; a proceeding Avhich was partly 
a protest against the claims of the Victorian Upper House. The right 
of the Lower House to sole financial control had long been a promi- 
nent article of liberal faith in Victoria ; for curiously enough that 
colony — the only one in which the Constitution expressly forbids the 
Legislative Council to amend Appropriation or Tax Bills — has seen the 
most serious " deadlocks " that have occurred in Australia. Another 
instructive feature of the debate was the strong opposition shown, by 



THE FEDERAL MOVE^[ENT IN AUSTRALIA. 147 

the representatives of Victorian farming interests, to the admission of 
Xew Zealand within the magic circle of the Commonwealth. An 
amendment to substitute " Australian " for " Australasian," and 
another to omit "New Zealand" from the number of States entitled 
to adopt the Constitution, were narrowly defeated ; but later on an 
amendment was carried to except New Zealand from the colonies 
which might be subsequently admitted as " New States." 

In the Legislative Council of Victoria, the general resolution was 
moved by Mr. Cuthbert on 8th July, and carried after a three nights' 
debate. The Council then waited for the Assembly, and between 29th 
September and 21st October, with only four sittings, it dealt with the 
Bill and with the Assembly's amendments. It restored the power of 
suggestion, which the Assembly had struck out ; and it forwarded to 
the Assembly a message which was never considered. 

South Australia. — The South Australian Assembly began the 
consideration of the Bill simultaneously with the Victorian Assembly. 
Mr. Playford, on 30th June, moved a resolution approving generally 
of the Bill, and of a second Convention, if necessary. While New 
South Wales remained passive, there was no hurry, and the debate 
proceeded slowly. The six nights which it occupied were spread out 
over nearly three months ; and a fragmentary consideration in Com- 
mittee, begun on 29th September, was not quite finished when the 
Assembly prorogued on 19th December. The two chief amendments 
made were for the election of Senators by the people, and for the 
submission of constitutional amendments to a referendum in each 
colony, instead of to a Convention. 

In the Legislative Council the debate was even more leisurely. 
The resolution was moved by Mr. AY. Copley on 7th July, debated on 
nine evenings, and carried on 8th September, The following week its 
consideration in Committee got as far as the omission of the word 
"Commonwealth" — for which, however, no substitute could be agreed 
on. Then the Council decided to wait for the Assembly — with the 
result that nothing more was done that session. Next year, however, 
the discussion was resumed, in a somewhat perfunctory way, and in 
December, 1892, the Bill was reported with amendments. 

Tasmania. — Tasmania, too, made some effort to deal with the 
question, but on rather different lines. There it was proposed to ask 
the Houses to consider the Bill first, and then to remit it to the con- 
sideration of a provincial Convention elected by the voters of Tas- 
mania. Accordingly in July a "Commonwealth of Australia Bill " was 
introduced by the Attorney-General (Mr. A. Inglis Clark) providing 
for 50 representatives being elected, upon the House of Assembly 
rolls, to consider the Bill. The draft Constitution was also considered 
by the House in Committee, and the amendments made were attached 
to Mr. Clark's Bill, which was passed and sent to the Council. It 
there reached its second reading, but after several adjournments it 
was ultimately shelved, on the ground that Tasmania's part in the 
matter was to follow, not to lead. 

New South Wales. — The Parliaments of three colonies had thus 
found time to deal partially, if somewhat perfunctorily, with the 
matter; but neither Queensland, Western Australia, nor New Zealand 



148 HISTORICAL INTRODUCTION. 

had taken any steps at all. The two latter colonies took little interest 
in the matter ; and indeed in New Zealand an abstract motion by Sir 
George Grey on the subject of Federation, but having no direct 
reference to the Convention Bill, was unceremoniously counted out. In 
Queensland, however, the Chief Secretary, Sir Samuel Griffith, 
announced his readiness, and that of his colony, to follow the lead of 
New South Wales. All Australia, in fact, was waiting for New 
South Wales ; and we must now direct our attention once more to the 
course of events in that colony. 

The retirement from office, in October, 1891, of Sir Henry Parkes, 
the recognized leader of the movement, left but a slender prospect of 
immediate action being taken by the New South Wales Parliament. 
Mr. Eeid, and a large section of the freetraders, put freetrade before 
Federation ; the labour party put social questions before Federation. 
Mr. G. R. Dibbs, the new Premier, was no friend of the Common- 
wealth Bill ; nor were most of his colleagues. Mr. Barton, however, 
who Avas already recognized as Sir Henry Parkes' federal lieutenant — 
though in provincial party politics they Avere on opposite sides — 
accepted the Attorney-Generalship in the new Ministry, on the 
understanding that he was to have a free hand in dealing with 
Federation. Mr. R. E. O'Connor, also an earnest federalist, took the 
portfolio of Minister of Justice, with a seat in the Upper House. Mr. 
Barton, at the general election and also at his re-election as Minister, 
laid down his federal programme clearly, on the following lines : — 
(1) The draft Constitution to be fully debated ; (2) Parliament to 
specify its amendments ; (3) the Bill and desired amendments to be 
laid before a second Convention ; (4) the Bill as amended by the 
second Convention to be submitted to each Parliament ; and (5) to be 
finally submitted to the people, each man to have only one vote. 

But Mr. Barton had a difficult task. He was surrounded by 
unsympathetic colleagues in an unsympathetic House. The Parlia- 
ment was interested in " urgent local legislation " — notably the tariff 
and the Electoral Bill — and was not keenly interested in Federation. 
Though the general feeling of the community was supposed to be 
federal, no active political pressure was as yet being brought to bear 
on members by their constituencies. On 21st December Mr. Andrew 
Kelly, a labour member, moved a resolution in the Assembly ''That 
no system for the federation of the colonies will be acceptable to this 
House until the electoral system provides for the principle of one man 
one vote at the election for members of the House of Representatives." 
After half an hour's debate, in a thin House, this was carried. 

Early in 1892 Sir Henry Parkes wrote a letter to Mr. Dibbs, 
informing him that he would propose an entirely new course for deal- 
ing with Federation, " founded upon the proceedings of the thirteen 
original States of the American union." He seems to have lost faith in 
the possibility of carrying Federation through by Parliamentary action 
alone; and accordingly, in March, 1892, he moved the adjournment 
of the House to discuss " the movement in favour of Federation, and 
the most expedient course to be pursued in bringing it to a successful 
conclusion." He reviewed the movement, complained bitterly of the 
tactics of opponents, dealt with the causes of delay, and affirmed that 



THE FEDERAL MOVE:NrENT IN AUSTRALIA. 149 

Parliament was a very unfit body to deal with the question, because it 
was elected for other purposes. Finally he unfolded his new plan : — 

" Now, if my contention be at all sustainable, that Parliament is 
not elected to deal with this question, but that on the contrary it 
ought to be elected to deal with quite different questions, we are 
driven to enquire what steps should be taken ; and though we may be 
excused from our inexperience in not adopting this step at an earlier 
stage, still it seems to me to be the only step that can be taken, if we 
are in earnest in desiring to bring this great question of the union of 
the colonies to a successful issue — that is, for the people themselves, 
the electors who sent us into this Assembly, the electors themselves 
throughout the colonies, to elect another Convention to revise the 
draft Constitution of the late Convention, and to frame a new Bill, if 
in their wisdom they think proper to do so." 

Mr. Barton, however, favoured adhering to the lines already laid 
down of Parliamentary discussion and a second Parliamentary Conven- 
tion. Shortly afterwards, on 23rd November — notwithstanding pro- 
tests from those whose chief desire was "urgent legislation" — he 
introduced the federal resolutions, re-affirming the principle of 
Federation, approving the main principles of the Commonwealth Bill, 
and expressing the opinion that the Bill should be dealt with in Com- 
mittee, and the amendments of the several Parliaments remitted to a 
second Convention, similarly appointed and reporting to the Parlia- 
ments, and that the question of final adoption should be submitted to 
the electors. 

The debate which followed was somewhat languid. Mr. J. H. 
Want moved an amendment, limiting the resolutions to an affirmance 
of the principle of Federation, and the desirability of discussing the 
Bill in Committee. Mr. Reid announced that he now took a more 
sanguine view of the prospects of Federation ; and that the general 
movement, in Australia and elsewhere, in favour of freetrade, encour- 
aged " a more rational and better idea that my principles will not be 
sacrificed." His objections to the Commonwealth Bill, however, 
remained as strong as ever. The debate was interrupted by a motion 
of censure, but was resumed on 11th January, 1893. Mr. Kelly again 
moved his amendment that no Federation would be acceptable that 
did not provide for "one man one vote ;" but the absurdity of dictat- 
ing conditions was pointed out, and the amendment was negatived. 
An attempt was made to shelve the question, on the two grounds of 
"urgent legislation" and the wickedness of the Bill; but this also 
failed, and the resolutions were carried. Circumstances again con- 
spired to delay the consideration in Committee, but this was promised 
for the following session. 

In the Legislative Council, after several postponements, Mr. R. 
E. O'Connor on 17th May moved the same resolutions. His speech 
was noteworthy for a suggestion in regard to " deadlocks " — that if a 
Bill granting supplies were thrown out by the Senate in one session, 
and the disagreement continued in the next session, the two Houses 
should sit together, and some specified majority of the joint sitting 
should decide the matter finally. The resolutions were carried, but, 
the end of the session being near, the consideration of the Bill in 
Committee had to stand over. 



150 HISTORICAL INTRODUCTION 

In September Parliament Avas again convened, and on 12th 
October Mr. Barton moved that the House go into Committee to con- 
sider the Bill. Mr. Arthur Rae, a labour member, moved an amend- 
ment to the effect that Federation would " do nothing to meet those 
social and industrial problems so urgently pressing for solution," and 
that the draft Constitution was " of too rigid a character to suit the 
progressive spirit of Australian democracy, and should not be pro- 
ceeded with without a special mandate from the people of New South 
Wales." Sir Henry Parkes moved the adjournment of the debate, 
and it was never again reached. In the Council the first few clauses 
were actually discussed in Committee during November and December, 
but in a very desultory way ; and little progress had been made when 
a prorogation intervened. A few days later both Mr. Barton and Mr. 
O'Connor resigned their portfolios, owing to a resolution passed in the 
Assembly criticizing their action in accepting briefs against the 
Railway Commissioners ; and all hope of Parliamentary action was for 
the time at an end. In short, the Parliamentary process of dealing 
with the Commonwealth Bill had broken down hopelessly. 



(9) THE POPULAR MOVEMENT. 



G-ROWTH OP Federal Sentiment. — Sir John Robertson's boast that 
" Federation is as dead as Julius Csesar," was coming to be a favourite 
saying of anti-federalists ; but as a matter of fact the fedei^al spirit 
was only just beginning to awaken. The Commonwealth Bill, though 
neglected by the Parliaments, had helped to educate the people. 
Since 1891, public interest in the question of Federation had been 
steadily gaining ground; from 1892 onwards it began to advance 
rapidly, as a result of the collapse of the " land boom," the financial 
panic, and the resulting commercial depression. The crisis showed 
plainly that the prosperity of each colony was bound up in that of the 
others; that disaster to one meant loss to all; and that strength lay 
in co-operation. These considerations helped to break down the spirit 
of isolation and mutual jealousy which prosperity had fostered, and to 
emphasize the dangers of disunion. 

Moreover, bad times helped the cause of Federation in another 
way. The general stagnation of trade set every one enquiring for him- 
self into the causes which clogged the wheels; and the folly of inter- 
provincial barriers became increasingly apparent. Federation began 
to appeal to the pocket as well as to the heart ; and the people began 
to wake up to the fact that the "fad of Federation," with which 
politicians and Parliaments had been dallying so long, meant the 
salvation of Australia. 

Australian Natives' Association. — It had long become apparent 
that the Parliaments would accomplish little without a stimulus from 
their constituents; and the conviction grew that federalists must 
create a public organization, with the twofold object of demonstrating 
to the Parliaments the strength of the federal sentiment, and of 
further solidifying and educating that sentiment. For the chief share 



THE FEDERAL MOVEMENT IN AUSTRALIA. 151 

in the initiation of that moyementj credit must be given to the Aus- 
tralian Natives^ Association — an organization which, though less 
extensive in the other colonies, had in Victoria attained an extra- 
ordinary development, and represented the bulk of the political 
activity and enthusiasm of the younger generation. This Association, 
which was not only a power in politics, but also a political training 
school of the greatest value, had always been unswerving in its zeal 
for Federation ; and it was natural that the impulse for organization 
should spring from it. Under the leadership of such able successive 
Presidents as Mr. A. J. Peacock (1885-1886), Mr. T. J. Conneliv (1887), 
Mr. J. L. Purves, Q.C. (1888-1889), Mr. D. J. Wheal (1890), Mr. G. 
H. Wise (1891), this Association had helped to develop the federal 
sentiment widely throughout the colony, and was persistent in its 
agitation for definite action. At the end of January, 1890, a few days 
before the sitting of the Federal Conference convened by Sir Henry 
Parkes, a federal demonstration under the auspices of the Association 
Avas held in Melbourne. It was composed of delegates from its 
branches in all the colonies. This gathering, which is regarded by 
the Association with just pride, was presided over by Sir John Bray, 
of South Australia. Great enthusiasm and an intelligent interest in 
the cause of Australian union were displayed, and the following reso- 
lations formulating the basis of a Federal Constitution were passed: — 

1. That the time has now arrived for the Federation of the 

Australian colonies. 

2. That a Federal Legislature should be established, to consist of 

a Governor-General and two Houses of Parliament. 

3. That the members of one House should be elected by the 

Legislatures, and those of the other House by the people of 
the several colonies. 

4. That in one House each colony should be represented by an 

equal number of members. 

5. That the Federal Legislature should be empowered to deal 

with national matters, including: — (1) General defences; (2) 
Federal Court of Appeal; (3) relations of Australia with the 
islands of the Pacific ; (4) naturalization ; (5) uniform cus- 
toms duties, after a date to be agreed upon by the Legisla- 
tures of the several colonies; (6) railways; (7) post and 
telegraph; (8) the public debt; (9) federal revenue; (10) 
the division of any colony; (11) marriage and divorce laws; 
(12) insolvency; (13) quarantine regulations; (14) coinage; 
(15) patents, copyrights, and trade marks; (16) all legisla- 
tion affecting provincial affairs should be left to the Parlia- 
ment of each colony. 
FEDEaATiox Leagues. — In March, 1893, at the annual conference 
of the Australian Natives' Association, held at Kyneton, the dissatis- 
faction with Parliamentary dallying found vent, and it was recognized 
that active popular organization was needed to impress the provincial 
Parliaments with the necessity for action. As the outcome of the 
Kyneton Conference, a deputation waited upon Mr. Barton to urge 
hira to form a central Federation League in Sydney. 

Mr. Barton himself had already been moving in the same direc- 



152 HISTORICAL INTRODUCTION. 

tion. Though he had been unable to do much in Parliament, he had 
endeavoured by a series of public meetings in different parts of the 
colony to keep the Federal lamp alight. In December, 1892, he had 
visited Corowa and Albury on this mission, and had assured the folk 
on both sides of the Border that a Federal League, on strictly non- 
party lines, would greatly strengthen the hands of federalists in 
Sydney and Melbourne. The advice was acted upon; in January, 
1893, Corowa and Albury each formed an "Australian Federation 
League;" and by the end of May there were 15 branches of the 
League in the valley of the Murray. But the need was still felt of a 
central organization to keep all the colonies in touch ; and accordingly 
in June Mr. Barton convened a preliminary meeting of federalists, at 
which it was resolved to form an Australasian Federation League in 
Sydney ; and at a public meeting in the Town Hall on 3rd July, tha 
League was formed. Its auspices were not at first very favourable. 
Sir Henry Parkes stood aloof. He claimed that the idea of forming 
Federal Leagfues had originated with himself, and was afterwards 
appropriated by others who ignored his right to leadership (speech 
at Liverpool, N.S.W., reported Sydney Morning Herald, 30th July, 
1893). A meeting of the freetrade party, called by Mr. G. H. Reid, 
seemed suspicious of the new League, and resolved that in the then 
state of party politics no alliances could be formed even on the ques- 
tion of Federation, but that individual members of the party should 
be left free to use their own discretion. Opposition also turned up in 
another quarter ; the members of the " Democratic Social Federation " 
made a determined but unsuccessful effort to capture the Town Hall 
meeting, and to pass resolutions in favour of an Austi-alian Republic. 

However, the League was duly formed, with a Constitution 
which pledged it "to advance the cause of Australian Federation by 
an organization of citizens owning no class distinction or party in- 
fluence, and using its best energies to assist Parliamentary action, 
from whatever source proceeding, calculated to further the common 
aim of Australian patriotism." It did not commit itself to any par- 
ticular scheme of Federation, but advocated " the Federal Union of 
Australasia on such lines as may be constitutionally approved by all 
the colonies concerned after further deliberation and report by 
assembled representatives of each." The League never had a sen- 
sational history, but thenceforward to the end of the fight it shows a 
record of steady organizing and educating work. It formed a nucleus 
for an active body of earnest federalists in Sydney, and a connecting 
link between the country leagues, which began to spring up in num- 
bers, especially in the border districts. This result was largely due 
to the indefatigable work of Mr. Edward Dowling, who from first to 
last was principal honorary secretary to the League. The example 
spread. At the end of 1893 and the beginning of 1894, leagues were 
formed in Melbourne, Bendigo, Ballarat, Echuca and other Victorian 
towns. In August, 1895, a league was formed at Adelaide; in July, 
1898, one was inaugurated in Brisbane, and in July, 1899, one was 
formed in Auckland. 

Corowa Conference, 1893. — In the new movement the Border 
Leagues at once began to take an active part. The policy of hostile 



THE FEDERAL MOVEMENT IN AUSTRALIA. 153 



tariffs and commercial isolation doubtless affected the great cities in 
an equal degree ; but to the dwellers near the border the disadvan- 
tages were more direct and more obvious. The Border Leagues, 
therefore, were among the most active missionaries in the movement; 
and on their invitation a Conference was held at Corowa, on 31st July 
and 1st August, 1893, to which representatives from trading and 
commercial bodies. Federation Leagues, branches of the Australian 
Natives' Association, and kindred associations on both sides of the 
Murray, were invited. The Sydney League sent two delegates, all the 
Border Leagues were represented, and representatives from various 
Vjranches of the Australian Natives' Association — especially on the 
Victorian side — mustered in force. The usual resolutions expressing 
the urgent need for Federation were proposed and warmly supported, 
and united organization were resolved upon ; but as the proceedings 
drew to a close it was felt that something more was required. Of 
enthusiastic speaking there was no end; the demand was now made 
for some definite and practical basis of action. To meet this. Dr. John 
Quick, a representative of the Bendigo branch of the A.N.A., proposed 
a resolution which marked a new epoch and initiated a new mode of 
dealing with the question : — " That in the opinion of this Conference 
the Legislature of each Australasian colony should pass an Act pro- 
viding for the election of representatives to attend a statutory Con- 
vention or Congress to consider and adopt a Bill to establish a Federal 
Constitution for Australia, and upon the adoption of such Bill or 
measure it be submitted by some process of referendum to the verdict 
of each colony." This resolution was carried unanimously, and was 
the achievement which makes the Corowa Conference historically 
important. 

Dr. Quick did not leave the resolution to its fate, but, upon his 
return to Bendigo, elaborated it into a definite scheme. He framed 
an "Australian Federal Congress Bill," which he submitted to the 
Bendigo League, and which was discussed and adopted by that body 
and was published on 1st January, 1894. This Bill in its main features 
became the basis of the Enabling Acts which were afterwards passed 
in all the colonies, and by means of which the cause of Australian 
union was ultimately brought to a successful issue. It purported to 
*' provide for the representation of Victoria at an Australasian Con- 
gress legally created to frame a Constitution for the Federation of the 
Australasian colonies, and further to provide for the reference of such 
Constitution when framed to the vote of the people," and was designed 
as the model for a series of Acts to be passed, in substantially uniform 
shape, in all the colonies. The procedure which such a series of Acts 
would have laid down is shortly this : — 

(1.) That each colony should elect, on its Parliamentary franchise, 
ten representatives to a Federal Congress. 

(2.) That the Congress should frame a Federal Constitution. 

(3.) That, on a day to be arranged between the Governments, the 
Federal Constitution should be referred to the electors of 
each colony for acceptance or rejection. 

(4.) That if the Constitution were accepted by majorities in two 
or more colonies, it should be forwarded to the Imperial 
Government to be passed into law. 



154 HISTORICAL INTRODUCTION. 

The novel and all-important element in this proposal was the idea 
of mapping out the whole process in advance by Acts of Parliament — 
of making statutory provision for the last step before the first step 
was taken. Hitherto, each successive step in the framing of a Con- 
stitution had been left dependent on the concurrence of all the Parlia- 
ments or all the Governments for the time being ; with the result that 
every hitch, every discouragement, had led to delay, and all the zeal 
and labour expended on the Commonwealth Bill of 1891 seemed in 
danger of being lost, and the prospect of bringing the question to a 
final issue was as remote as ever. But here was a scheme which, 
when once launched, would ensure the framing of a Constitution and 
its submission to the people. Every step in the process would thus be 
invested, in the minds of the people, with a seriousness and importance 
otherwise unattainable. Those who had jested at the Convention of 
1891 as a body of men engaged in the amiable and amusing task of 
drawing up a Constitution for the waste-paper basket would have to 
admit that there was something serious about a Constitution which, 
when framed, the Government would be obliged by law to submit to 
the electors for their acceptance or rejection. 

Another feature of the scheme, equally important, but not abso- 
lutely new, was the principle of the direct popular initiative in the 
election of the Congress or Convention. The two things now wanted 
were popular interest in the framing of a Constitution, and popular 
confidence in the Constitution when framed ; and the best guarantee 
of both these things was that the people should be asked to choose for 
themselves the men to Avhom the task was to be entrusted. The 
adherents of the Parliamentary system had thought that the 
people would be less likely than the Parliaments to select men who 
by ability and training were most suited for the work of Constitution- 
making ; but they had forgotten that more important even than the 
j)ersonnel of the Convention was the public confidence in the Con- 
vention. The result showed that the chosen representatives of the 
people were for the most part those who would have been the chosen 
representatives of the Parliaments ; but from the fact of their election 
by the people they had a power, and they enjoyed a confidence, which 
election by the Parliaments could never have given them. 

But though Dr. Quick's scheme meant a new start, it did not 
mean that the work already done was to be wasted. It was intended 
to supersede, not the Commonwealth Bill, but the process of dealing 
with that Bill ; not the work of the Sydney Convention, but the 
abortive attempts to complete that work. The assembling of a second 
convention — the expediency of having it elected by the people — the 
necessity of a final referendum — had already been suggested in con- 
nection with the Bill of 1891. What had not hitherto been suggested 
was that all these steps should first be pre-ordained by Enabling Acts 
in all the colonies. 

The new proposals at once attracted attention. They were 
favourably noticed in the press, they were discussed and reported 
upon by Federation Leagues and kindred bodies ; they were ex- 
pounded by the framer himself at meetings at various places. In 
January, 1894, he came to Sydney, and explained his scheme to a 



THE FEDERAL MOVEMENT IN AUSTRALIA. 155 

meeting of the Central League, which referred it to a Select Com- 
raittee for consideration and report. This Committee presented its 
report at a meeting of the League held on 15th March, when the 
report was unanimously adopted. The report heartily endorsed the 
idea of mapping out the programme by Enabling Bills in all the 
colonies, but suggested a modification in the process of framing the 
Constitution — namely, that each colony should first elect, on its Par- 
liamentary suffrage, a provincial Convention to formulate its own ideas 
of a scheme of Federation, and that these schemes should then be 
submitted to a Federal Convention, elected by the Parliaments, which 
should frame a Federal Constitution in which the views of the several 
colonies should as far as practicable be harmonized. It was feared 
that the attempt to strike off a Federal Constitution at one sitting, 
Avithout consulting the separate colonies except for the final vote on 
the completed Constitution, might fail to secure adequate adjustment 
of conflicting interests, and thus lead to the rejection of the Constitu- 
tion at the polls. 

DiBBs' Unification Scheme. — At this stage an interlude occurred 
in the shape of an alternative scheme of union, drawn up by Sir 
George Dibbs, the Premier of New South Wales. He had always 
been a severe critic of the Commonwealth Bill ; and on 22nd Mav, 
1894, in a speech to his constituents at Tam worth, he propounded a 
scheme of complete unification. This scheme was immediately con- 
demned by Sir Henry Parkes and Mr. Barton, and by the federalist 
press, as being impracticable ; but Sir George Dibbs shortly afterwards 
formulated it in a letter dated 12th June to Sir James Patterson, 
Premier of Victoria, in which he announced that the consideration he 
had given to the federal question since the Convention of 1891, but 
" more especially since the fiasco of the banking crisis found us so 
injuriously divided," had led him to the conclusion " that it would be 
easier first to completely unify the interests of the two great colonies 
of Victoria and New South VV^ales, and then to attract neighbouring 
colonies within the sphere of our extended influence." He set out his 
objections to the Commonwealth Bill ; it leant too much to American 
ideas, too little to Canadian ; it involved tlie expense of State and 
Federal establishments ; ." its financial provisions were unfair and 
unworkable ; equal representation in the Senate was absurd. On the 
other hand, it secured no federal control over public debts, railways, 
or land revenues, and would tend to perpetuate existing rivalries. 
" How far more beneficial in every way ; how far more likely to 
extend our revenues and minimise our expenditures ; how far more 
impressive to the outside world and to our creditors in England, 
would be a complete pooling of our debts, our railways, our national 
establishments generally. We are none of us so badly off that we 
cannot be permitted to meet each other on equal terms. lu such a 
partnership New South Wales would not be disposed to say to her 
neighbours, ' Your debts are more burdensome, your railways and 
lands less productive than ours.' We would give to the United 
Government that prestige and supreme control which is almost entirely 
denied under the Commonwealth scheme, wherein the Federal Legis- 
latui-e would be numerically and structurally wholly overshadowed by 



156 HISTORICAL INTRODUCTION. 



the provincial Governments ; and without haggling over the items, we 
would be prepared to hand over our Custom-houses, post offices, and 
other necessary establishments for the common good, provided others 
did the same." That there must be local governments in the provinces 
he admitted ; but he would confine these local governments, " as in 
Canada," within subordinate limits, and to strictly local purposes. 
He practically admitted that the other colonies could not be induced 
to join such a union at the outset ; but he submitted the following 
draft outline of a scheme for the consideration of the people of the 
two colonies of New South Wales and Victoria : — 

" Unification of New South Wales and Victoria as a preliminary 
to complete Australian Union. 

" Union for all national purposes to be complete as under : — 
(1.) One Viceroy, or Governor. 
(2.) One Parliament of two Chambers. 
(3.) One Customs tariff. 
(4.) One scale of excise duties. 
(5.) One joint debt. 
(6.) One railway management. 
(7.) One land revenue and one land law. Until the laws are 

consolidated, existing regulations to hold good. 
(8.) One Defence Administration. 
(9.) One postal and telegraph administration. 
(10.) Provincial Government, with wide local powers. 
(11.) Surplus revenue of the Supreme Government to be appor- 
tioned to the Provinces — partly on a population basis, 
partly on an occupied mileage area basis. 
(12.) Certain departments of the Public Service removed from 
political influence may have their headquarters in Mel- 
bourne, others in Sydney. 
(13.) One High Commissioner's establishment in London, repre- 
senting the whole. 
(14.) One Supreme Court. 

(15.) Title, ' The United Colonies.' Afterwards, when South 
Australia and Queensland come in, the title to be ' The 
Dominion of Australia.' " 
This letter evoked merely a non-committal reply from Sir James 
Patterson, but it was printed and circulated, and found a certain 
number of adherents. Unification — assuming it to be practicable — 
does undeniably present certain advantages over Federation, and has 
always, in the minds of many people, seemed a preferable form of 
Government. Sir George Dibbs, of course, was not the first apostle of 
unification — an idea which really meant little more than undoing the 
work of separation and re-establishing the earlier complete unity. 
Sir John Robertson — a typical New South Wales anti-federalist — had 
always expressed his willingness to welcome Victoria back as a 
"repentant child;" and there is reason to believe that even Sir 
Henry Parkes, at the very outset of his career, had some leaning to a 
complete amalgamation. He had soon convinced himself, however, 
that a federal union was the only form of union to which the assent of 



THE FEDERAL MOVEMENT IN AUSTRALIA. 157 

the Australian colonies could possibly be secured. The history of the 
colonies as self-governing communities had given rise to local senti- 
ments and local patriotisms ; their several free institutions were the 
results of long and arduous political struggles; and any attempt to 
abolish the constitutions of the colonies entirely, to overthrow their 
existing Parliaments and their existing local independence, would be 
an impossible task. Nor, if possible, is it clear that it would be 
desirable ; for unification has its disadvantages as well as its advan- 
tages. The immense areas of the different colonies, and their 
climatic and industrial conditions, make the preservation of their 
individuality highly important ; whilst they also afford a strong argu- 
ment against entrusting unlimited powers to a central government 
which, in the nature of things, cannot have complete knowledge of, 
nor complete sympathy with, all the different local requirements of 
the different colonies. 

Much that Sir George Dibbs said about the omissions of the 
Commonwealth Bill and the desirableness of federating the railways 
and the debts, had a great deal of force. Still, this was criticism 
which did not involve the federal principle of the Bill, but merely the 
extent of federal control. The shortcomings which he mentioned 
were curable without any departure from the federal principle, and 
have indeed for the most part been cured by the subsequent elabora- 
tion of the Bill. 

One serious blemish of the Dibbs scheme was that it deliberately 
contemplated dividing Australia into two sections — the large States 
and the small States — and denying to the latter any voice in the form 
of the union. New South Wales and Victoria were to frame the 
Constitution, and the other colonies were to accept the terms dictated, 
or stay outside. The impossibility of getting them willingly to con- 
sent to practical annexation was apparent ; but whether — if the initial 
difficulty of amalgamating the two large colonies had been surmounted 
— the others could ever have been forced in, is highly doubtful. The 
irritation which such an attempt would have caused would have been, 
to say the least of it, an unfavourable auspice for union. 

The unification idea has undoubtedly had some influence on the 
structure of the Constitution as it stands to-day j but not enough to 
satisfy the extreme unificationists, whose weight, curiously enough, 
has chiefly been thrown into the anti-federal scale. Sir George Dibbs^ 
scheme has been more or less prominent, throughout the whole history 
of the movement, as a counterblast to the panegyrists of the Federal 
Constitution. It has afforded an opportunity to assert that the 
federalists are only half and half unionists — are in fact the " real pro- 
vincialists " — and that the real unionists are those who preach an 
impracticable unification. But it has never been an active mission on 
its own account and for its own sake. 

The Reid Ministry. — On 2nd August, 1894, after a general elec- 
tion, the Dibbs Government resigned, and next day the Reid Adminis- 
tration came into office. Mr. Reid immediately placed Federation on 
his programme, and in his manifesto to the electors of King Division 
declared that his Government would ''lose no time in restoring the 
subject of Australian Federation to its rightful position of commanding 



158 HISTORICAL INTRODUCTION. 

importance and urgency." He soon announced that he was in favour 
of a new Convention elected by the people of all the colonies, and he 
communicated with the other Premiers with a view to a preliminary 
conference. Federation, however, did not occupy the first place in 
the list. Matters of local legislation, and particularly the question 
with which the Ministerial party were most closely associated — the 
repeal of the Dibbs duties and the substitution of a purely freetrade 
tariff, with land and income taxes — took precedence. On 12th No- 
vember the Premier was waited upon by a deputation from the 
Federation League, which placed before him Dr. Quick's scheme and 
the League's report upon it. He received them favourably, and 
declared himself deeply impressed with the merits of the two schemes; 
but said that as the procedure to be adopted was to be discussed with 
his brother Premiers, and must be the result of joint deliberations, he 
could not at that stage commit himself to a definite course. 

Next day Sir Henry Parkes moved in the Assembly the follow- 
ing resolution : — " That in view of the rapid growth of Australia in 
the elements of national life, and the number of questions arising out 
of that growth which can only be dealt with adequately by a national 
Legislature, it is in the highest sense desirable that Parliament, 
without loss of time, should resume the consideration of the Federation 
of these colonies under one national Government.^' He emphasized 
the fact that this motion had no relation to any party, or to an}^ 
personal feeling — though he hinted that there was somebody of whom 
he strongly disapproved. In a dignified and statesmanlike speech he 
urged the importance of prompt action, but oracularly refrained from 
any definite proposal. He deprecated, however, throwing aside the 
Convention of 1891, and starting afresh with any less representative 
body ; and he insisted that every step must be made in concurrence 
with all the other colonies — words which excluded the Dibbs scheme, 
but which left his attitude with regard to the Enabling Bill process in 
doubt. Mr. Reid, in reply, reiterated the views he had expressed to 
the deputation. The debate disclosed little opposition, but not very 
much enthusiasm ; speakers from the labour party especially main- 
taining that other matters were more urgent. The resolution was 
carried, after several hours' debate, by 55 votes to 10 — the noes 
mostly consisting of labour members. 

The Premiers' Conference. — The Conference of Premiers met at 
Hobart, on 29th January, 1895, the Premiers present being Mr. Reid 
(New South Wales), Mr. (afterwards Sir) George Turner (Victoria), 
Mr. (afterwards Sir) Hugh M. Nelson (Queensland), Mr. C. C. 
Kingston (South Australia), Sir Edward Braddon (Tasmania), and 
Sir John Forrest (Western Australia). The following resolutions, 
submitted by Mr. Reid, were carried : — 

(1.) That this Conference regards Federation as the great and 

pressing question of Australasian politics. 
(2.) That a Convention, consisting of ten representatives from 

each colony, directly chosen by the electors, be charged 

with the duty of framing a Federal Constitution. 
(3.) That the Constitution so framed be submitted to the electors 

for acceptance or rejection by a direct vote. 



THE FEDERAL MOVEMENT IN AUSTRALIA. loij 

(4.) That such Constitution, if accepted by the electors of three 
or more colonies, be transmitted to the Queen bj an 
Address from the Parliaments of those colonies praying 
for the necessary legislative enactment. 
(5.) That a Bill be submitted to the Parliament of each colony 
for the purpose of giying effect to the foregoing resolutions. 
(6.) That Messrs. Turner and Kingston be requested to prepare a 

draft Bill for the consideration of this Conference. 
Except for Mr. Xelson and Sir John Forrest, these resolutions 
^vere carried unanimously. Mr. Xelson agreed to everything except 
the proposal that the Constitution should be submitted for the 
approval of the electors of each colony ; he thought that the approval 
of the colonies "should be obtained in such manner as each colony 
may prescribe in the Act authorizing such Convention." Sir John 
Forrest appended the following statement : — " "While agreeing that 
Federation is the great and pressing question of Australasian politics, 
I am opposed to the procedure proposed to be adopted, and I am of 
opinion (1) that the draft Commonwealth Bill of 1891 should be first 
considered by the Parliaments of the respective colonies; (2) that 
any amendments made by the several Parliaments should be referred 
to a second Convention to be appointed by the several Parliaments 
after a general election, and that the Bill, as approved by this second 
Convention, be final, and be submitted for the necessary Imperial 
legislation." 

Mr. Kingston would have preferred to begin with an Imperial 
Federal Enabling Act which would enable the colonies, without 
further Imperial legislation, to adopt any Constitution framed as 
above, subject only to the Koyal assent. He did not, however, think 
that this view ought to prevent South Australians co-operation in the 
scheme proposed. 

On 6th February the draft Bill prepared by Mr. Turner and Mr. 
Kingston was " considered, amended, and agreed to as the draft of a 
type of Bill suitable for giving effect to the resolutions of the Confer- 
ence." Mr. Reid intimated that "so soon as practicable after the re- 
assembling of the New South Wales Parliament his Government would 
introduce a measure providing for the chief objects of the Bill as 
defined in the draft." Messrs. Turner, Kingston, Nelson, and Sir 
Edward Braddon intimated that as soon as New South "\V^ales had 
passed the Bill they would follow suit — Mr. Nelson, however, reserving 
the right to dispense with, the direct reference to the electors. Sir 
John Forrest was not present, and was not committed in any way. 

The draft Bill framed by the Conference provided in detail for 
the procedure outlined by the resolutions; and it embodied one very 
important amplification of them. It provided that the Convention, 
after framing a draft Constitution, should adjourn for a period of not 
less than 30 and not more than 60 days ; and that it should then re- 
assemble, reconsider the Constitution with any amendments that 
might be proposed, and finally adopt it with any amendments that 
might be agreed to. This provision obviated the objections which the 
Sydney league had made to Dr. Quick's scheme. It gave time for 
reflection and reconsideration; it gave an opportunity for the several 



160 HISTORICAL INTRODUCTION. 



colonies, through their legislatures or otherwise, to formulate their 
criticisms and objections; and it thus ensured a more thorough 
threshing out of all questions of conflicting interest. The Premiers' 
plan thus followed in the main the outlines of Dr. Quick's proposal. 

The merits of this scheme were obvious and notable. It avoided 
all the great defects of the process of 1891. It secured popular 
interest, by providing that the members of the Convention should be 
elected by the people themselves, and that the Constitution should be 
submitted to the people themselves for acceptance. It conciliated the 
Parliaments by giving them a voice in initiating the process, a voice 
in criticizing the Constitution before its completion, and a voice in 
requesting the enactment of the Constitution after acceptance. In 
other words, whilst necessarily assigning to a single body, representa- 
tive of all the colonies, the task of framing the Constitution in the 
first instance and finally revising it, it ensured that both the peoples 
and the Parliaments of the several colonies should be consulted at 
every stage — in initiation, in delibei'ation, and in adoption. And 
lastly, by making statutory provision in advance for every step of the 
process, it ensured that the matter once begun should be brought to 
an issue. No fuller security could have been given that the Constitu- 
tion would be based upon the will of the people and of the people's 
representatives. 

The Enabling Acts. — There was not even yet an end of all 
delays. The fiscal legislation of the Reid Government involved a 
dispute between the Houses, a dissolution, and a general election. In 
December, 1895, however, the new policy was carried into effect, and 
Acts imposing taxes on the unimproved value of land and upon 
incomes were passed, as well as a Customs Duties Act, which repealed 
the Dibbs duties of 1891, and substituted an extremely freetrade 
tariff. This fiscal system had afterwards an important bearing on 
the criticisms directed against the financial provisions of the Federal 
Constitution. 

Meanwhile in October an Enabling Bill had been introduced, 
following for the most part the lines of the Premiers' draft Bill. 
The only alteration of importance was that the interval between the 
two sittings of the Convention was increased to " not less than 60 and 
not more than 120 days," with the object of allowing ample time for 
Parliamentary discussion of the Constitution. On the motion to 
introduce the B511, Mr. Henry Copeland moved an amendment to the 
effect that the proper basis for advancing the federal movement was 
the consideration of the Commonwealth Bill of 1891 by means of the 
procedure laid down by the Convention. This proposal however 
received little support, and was defeated on division by 59 votes to 7. 
On the second reading, Mr. McMillan opposed the principle of a Con- 
vention elected by the people, arguing that the selection of a suitable 
combination of trained men would be better performed by Parlia- 
ment J and he moved an amendment to refer the question to a Select 
Committee. This also was defeated, and the second reading was 
carried on division by 62 votes to 5. 

In Committee, an amendment was moved by Mr. A. B. Pidding- 
ton to provide for the selection of the representatives by a college of 



THE FEDERAL MOVEMENT IN AUSTRALIA. 161 

federal electors ; but this found no favour, and was negatived. Mr. 
W. M. Hughes (a labour member) moved an amendment to provide 
that the several colonies, instead of being represented equally in the 
Convention, should be represented in proportion to population ; but 
with a maximum of ten and a minimum of five representatives. 
This caused considerable debate ; it being argued on the one side that 
the Convention could not represent the people of Australia fairly 
unless it represented them proportionately, and pointed out on the 
other that the Convention did not purport to represent the people of 
Australia, but only the peoples of the colonies gathered together to 
confer on equal terms. Ultimately the amendment was negatived on 
division by 45 votes to 26, the minority consisting for the most part 
of labour members. On the question of the acceptance of the Con- 
stitution by a majority of the voters, it was argued that there ought 
to be some provision to prevent the Bill being accepted if the number 
of votes polled was not large enough to be representative. An 
amendment requiring a total poll of one-third of the electors was 
defeated by S6 votes to 17; another requiring a total poll of one- 
fourth of the electors was defeated by 34 votes to 14 ; but subse- 
quently Mr. Reid agreed to an amendment requiring 50,000 affirmative 
votes. 

On 11th December, the Bill was debated in the Legislative 
Council. Considerable opposition was manifested, but no division was 
taken on the Bill, which was passed with unimportant amendments, 
and received the royal assent on 23rd December. 

There can be no doubt that the Enabling Bill would have 
encountered more serious opposition in both Houses had the opponents 
of Federation realized the importance of the step that was bein^ 
taken. They misjudged the vitality of the movement, and did not 
anticipate the stimulating effect of placing it on a popular basis. 
They expected that the new Convention, if it ever met, would be as 
futile as the last had apparently been ; and they trusted, in the last 
resort, to be able to secure the rejection of any Constitution which 
did not satisfy what they believed would be the demands of Xew 
South Wales. They thought that Federation could be trifled with 
again as it had been in the past ; and did not foresee the irresistible 
momentum which the federal cause would gather, or the completeness 
with which it was about to sweep away minor issues, and leap to the 
front as the first great practical question of Australian politics. 

Xew South Wales having redeemed her pledge and led the way, 
other colonies were not slow to follow. South Australia, under Mr. 
Kingston's leadership, took action as soon as it was clear that Xew 
South Wales was in earnest, and dealt with the Enabling Bill so 
promptly that it became law on 20th December — three days in advance 
of the mother colony. The only substantial variation in the South 
Australian Bill was that no minimum vote was required for the 
acceptance of the Constitution. The Tasmanian Bill, introduced by 
Sir Edward Braddon, came next, and was passed on 10th January, 
1896. It required for acceptance of the Constitution a minimum 
affirmative vote of 6000 — representing about the same proportion of 
voters as the Xew South Wales minimum. In Victoria, an Enabling 



162 HISTORICAL INTRODUCTION. 

Act had been introduced by Sir George Turner in December, and had 
passed the Assembly almost without opposition, the division on the 
second reading being 71 to 4. In the Council an amendment was 
made which the Assembly regarded as infringing its money powers, 
and which resulted in a temporary deadlock. In February, however, 
a second Bill was introduced, which became law on 7th March, 1896. 
It required a minimum affirmative vote of 50,000. 

Queensland and Western Australia were now being waited for. 
But Sir Hugh Nelson, the Queensland Premier, had meanwhile dis- 
covered difficulties in the way of passing a Bill in the form agreed 
upon. Queensland was tripartite in interest, the North and the Centre 
being arrayed against the South in their demand to be erected into 
separate colonies. This question of separation became interwoven 
with the question of Federation. The North and the Centre looked 
forward to Federation, not only for its own sake, but also as a step 
towards subdivision ; whilst Brisbane and the South feared that their 
trade would suffer from open competition with New South Wales and 
its metropolis. Each of the three divisions preferred to have separate 
representation in the Convention rather than to trust to the chances 
of a single electorate. Moreover, the Government and a large section 
of the Parliament favoured Parliamentary rather than direct election. 
Sir Hugh Nelson accordingly provided in his Bill that the Queensland 
representatives should be elected by the members of the Legislative 
Assembly, grouped according to the three great districts. The 
Premiers of the four colonies which had substantially adopted the 
model Bill joined in a remonstrance against this departure from the 
Hobart understanding; but without avail. Sir Hugh Nelson pro- 
ceeded with the Bill, but somewhat half-heartedly, without committing 
himself to the whole of the process, and reserving to the Parliament 
the right to send the Constitution to the people or not, as it pleased. 
He made no profession of being an ardent federalist, but argued that 
it could do no harm to have a voice in framing the Constitution, which 
they would afterwards be free to accept or reject. On the motion for 
the second reading, Mr. G. S. Curtis moved an amendment affirming 
that no Enabling Bill would be acceptable which did not provide for 
the election of representatives by direct popular vote. This was nega- 
tived by 36 votes to 26, and the Bill passed the Assembly in July, 
1896. But in the Council it was not unnaturally claimed that if the 
election was to be Parliamentary, both Houses should take part in it; 
and accordingly the Bill was returned to the Assembly amended to 
that effect. The Assembly, however, denied the representative 
character of a nominee House. The difference between the Houses 
proved irreconcilable; and in November — though Mr. lleid journeyed 
to Brisbane to assist a settlement — the Bill was laid aside. 

Meanwhile Western Australia had decided to fall partially into line 
with the movement, and had on 27th October, 1896, passed an Enabling 
Act, which, however, differed in important respects from the others. 
In the first place, the federal representatives of that colony were to be 
chosen, not by the people, but by both Houses of Parliament sitting 
together. And in the next place, the Constitution as framed by the 
Convention was only to be submitted to the people " if approved by 



THE FEDERAL MOVEMENT IX AUSTRALIA. 163 

Parliament." The Parliament of AV estern Australia, therefore, only 
gave a conditional adherence to the Enabling process, reserving to 
itself the right to draw back before the final stage. 

The Bathurst Convextiox. — A symptom of awakening public 
interest, and at the same time a means of stimulating that interest, 
was afforded in November, 1896, by a " People's Federal Convention " 
held at Bathurst — an unofficial assemblage to which delegates were 
invited from leagues and organizations of all kinds throughout Aus- 
tralia. The Convention numbered nearly 200 representatives, mostly 
from Xew South Wales, but including several from other colonies. 
Its aim was both educative and deliberative ; and its chief work took 
the form of a detailed discussion of the Commonwealth Bill of 1891. 
Federation was just then, for the first time, a question in which the 
people could take a practical and responsible interest, because on the 
statute book of four colonies were Acts requiring the people first to 
elect representatives to frame a Constitution, and then to say '' Yes " 
or " Xo " to the adoption of that Constitution. The Bathurst Con- 
vention was opportune ; its proceedings were reported at length by 
the press, and followed with interest throughout Australia. The 
debates not only showed a general appreciation of the federal spirit, 
but contributed some really valuable suggestions — particularly in 
respect of the difficult question of finance. But perhaps the Con- 
vention did best service in helping to dissipate the atmosphere of 
suspicion which, in the minds of a section of the people, had always 
hung round the Commonwealth Bill. Vague impressions were abroad 
that the Bill was a compound of " Toryism," " Imperialism," " Mili- 
tarism," and other unpopular qualities ; but the Bathurst Convention, 
though reflecting every shade of political and social belief, failed to 
find these defects. The fact that the Commonwealth Bill was by 
general consent taken as the basis of discussion, and that it came so 
well out of the ordeal, helped to establish its position as a draft Con- 
stitution which must be the basis of all future deliberations. 

The Convextiox Elections. — It was decided to wait no longer 
for Queensland; and 4th March, 1897, was fixed as the date for the 
election of federal representatives of Xew South Wales, Victoria, 
South Australia, and Tasmania. In each colony the election was 
preceded by a campaign ; though, owing to the large size of the 
constituencies — each colony being one electorate for the purpose — no 
thorough canvass was possible, and printed addresses largely took the 
place of speeches. 

In New South Wales the 10 seats were contested by 49 candi- 
dates. First there were a number of public men of various political 
faiths and constitutional views, but who may all be classed as federalists. 
Cardinal Moran, Roman Catholic Archbishop of Sydney, was among 
the candidates. Then there were the " Labour Ten," a bunch chosen 
by the Political Labour League of New South Wales. They insisted 
on a Federal Legislature of one chamber, elected on a population 
basis ; a federal franchise giving " one man one vote ;" payment of 
members of the Federal Parliament ; elective Ministers ; the Initiative 
and the Referendum. On these terms they were prepared to give the 
Federal Parliament large powers; but they announced that " on any 



164 HISTORICAL INTRODUCTION. 

other conditions we are opposed to Federation." There was also a 
bunch of five gentlemen nominated by the " Patriotic League of New 
South Wales/' whose patriotism was avowedly provincial, and who 
styled themselves " Prudent Federalists." They wished each colony 
to retain its provincial tariff, and objected to the Federal Government 
having any taxing powers, except by way of a levy on the States. 
The list was filled up by a few comparatively unknown candidates, of 
little representative importance. 

The election was in no sense a party fight ; and although some 
organizations put forward " tickets," the candidates were mostly voted 
for on their public reputations. The result was a triumph for the 
federalists, the ten representatives being elected in the following 
order: — Mr. Edmund Barton, Q.O. ; Hon. G. H. Reid, M.L.A. 
(Premier) ; Hon. J. H. Carruthers, M.L.A. (Minister for Lands) ; Mr. 
W. McMillan, M.L.A. (ex-Treasurer) ; Mr. AY. J. Lyne, M.L.A. 
(Leader of Opposition) ; Hon. J. N. Brunker, M.L.A. (Chief Secre- 
tary) ; Hon. R. E. O'Connor, Q.C., M.L.C. ; Hon. Sir J. P. Abbott, 
K.C.M.G. (Speaker) ; Mr. J. T. Walker; Mr. B. R. Wise (ex- Attorney- 
General) . 

Each voter had to vote for 10 candidates ; and the number of 
those who recorded their votes was 139,850, out of a total of some 
260,000 electors — a poll not quite up to the usual standard of a general 
election, but very satisfactory considering the unusual conditions of 
the contest. Mr. Barton headed the poll with a magnificent vote of 
nearly 100,000, and the lowest elected candidate secured some 53,000 
votes. The Labour Party, with their impossible programme, were 
very low in the list ; though their leader, Mr. J. S. T. McGowen, polled 
some 40,000 votes, and would doubtless have been higher but for the 
bold attempt of his " bunch " to capture the Convention. The 
" Prudent Federalists " were nowhere. But though all the selected 
candidates were federalists, it cannot be said that the election disclosed 
any definite " mandate " as to constitutional principles. 

In Victoria 29 candidates were nominated. The voting, on the 
whole, was more on party lines than in New South Wales — the 
''tickets" of the Argus and the Age, the two daily morning news- 
papers of Melbourne, being voted extensively ; yet the polling was 
not nearly so heavy — votes being recorded by only 99,108 electors out 
of some 238,000 on the rolls. The ten representatives were elected in 
the following order : — Hon. Sir George Turner, K.C.M.G., M.L.A. 
(Premier); Dr. John Quick (ex-M.L.A.) ; Hon. Alfred Deakin, M.L.A. 
(ex-Minister) ; Hon. A. J. Peacock, M.L.A. (Chief Secretary) ; Hon. 
T, A. Isaacs, M.L.A. (Attorney-General) ; Mr. W. A. Trenwith, 
M.L.A. ; Hon. Sir Graham Berry, K.C.M.G. (Speaker) ; Hon. Simon 
Fraser, M.L.C; Hon. Sir William A. Zeal, K.C.M.G. (President 
Legislative Council) ; Mr. H. B. Higgins, M.L.A. 

In South Australia there were 33 candidates. The elected repre- 
sentatives were : — Hon. C. C. Kingston, Q.C., M.L.A. (Premier) ; Hon. 
F. W. Holder, M.L.A. (Treasurer) ; Hon. J. A. Cockburn, M.L.A. 
(Minister for Education) ; Hon. Sir R. C. Baker, K.C.M.G. (President 
Legislative Council) ; Hon. J. H. Gordon, M.L.C. ; Mr. J. H. Symon, 
Q.C. (ex-Attorney-General) ; Hon. Sir John W. Downer, Q.C., 



THE FEDERAL MOVEMENT IN AUSTRALIA. 165 

K.C.M.G., M.L.A. (ex-Premier); Mr. P. McM. Glynn; Hon. J. H. 
Howe, M.L.A. (ex-Minister) ; Mr, V. L. Solomon, M.L.A. 

In Tasmania there were 32 candidates ; and owing to the com- 
paratively small area of the colony a larger proportion of the electors 
than elsewhere could be reached by public meetings — a circumstance 
which contributed much to the federal education of the people. The 
elected representatives were : — Hon. Sir Philip O. Fvsh, K.C.M.G., 
M.H.A. (Treasurer) ; Hon. Sir Edward N. C. Braddon, K.C.M.G-., 
M.H.A. (Premier) ; Hon. Henry Dobson, M.H.A. (ex-Premier) ; Hon. 
John Henry, M.H.A. (ex-Treasurer) ; Hon. N. E. Lewis, M.H.A. (ex- 
Attorney-General) ; Hon. Nicholas J. Brown, M.H.A. (Speaker) ; 
Hon. C. H. Grant, M.L.C. ; Hon. Adye Douglas (President Legislative 
Council) ; Hon. William Moore, M.L.C. (Chief Secretary) ; Mr. M. J. 
Clarke, M.H.A. 

The first meeting of the Convention was fixed for 22nd March ; 
and on 12th March, almost at the last moment, the West Australian 
Parliament amended its Enabling Act, so as to allow the more speedy 
selection of the representatives of that colony. Next day the polling 
took place, the members of both Houses electing the following repre- 
sentatives : — Hon. Sir John Forrest, K.C.M.G., M.L.A. (Premier) ; 
Hon. Sir James G. Lee-Steere (Speaker) ; Mr. George Leake, M.L.A. 
(Leader of Opposition) ; Hon. F. H. Piesse, M.L.A. (Commissioner of 
Railways) ; Hon. J. W. Hackett, M.L.C. ; Mr. W. T. Loton, M.L.A. ; 
Mr. W. H. James, M.L.A. ; Mr. A. Y. Hassell, M.L.A. ; Mr. R. F. 
ShoU, M.L.A. ; Hon. J. H. Taylor, M.L.C. 



(10) ADELAIDE SESSION OF THE CONVENTION, 1897. 



The first meeting of the Convention took place at Adelaide on 
22nd March, 1897 ; though the West Australian representatives did 
not arrive till four days later. Before the Convention opened, each 
delegation met to consult, and then all the members held a private 
caucus for the preliminary discussion of methods of procedure. The 
representatives met at noon in the House of Assembly Chamber, when 
the Clerk of the Parliaments (Mr. E. G. Blackmore) read the procla- 
mation convening the Convention, and the representatives present 
signed the roll. Mr. Kingston, as Premier of the colony in which the 
Convention was held, was appointed President, and Mr. E. G. Black- 
more Clerk of the Convention. 

The first thing to decide was whether the Convention should 
openly take the Bill of 1891 for its basis, and work upon that, or 
should proceed to originate a new Constitution. It leaked out that 
the caucus had decided to begin by discussing general resolutions, 
and then appoint a Committee to draft a Bill; but the matter was 
discussed again in Convention. Each plan had its advantages, and 
opinion was divided. It was obvious that any new draft would borrow 
largely from the old, and some of the members thought it merely 
affectation, as weU as waste of time, to throw aside a Bill which 
admittedly would make an excellent foundation. But the argument 



166 HrSTORTCAL INTRODUCTION. 

prevailed that the Convention^ having been chosen by the people to 
" frame ^' a Constitution^ would best cany out its mandate, and best 
earn the confidence of its constituents, by beginning at the beginning, 
I and not formally building its work on the foundations, however excel- 
lent, laid down by others. 

Federal Eesolutions. — The Convention was as yet " a Parliament 
without an Executive." Sir George Turner suggested that Mr. 
Barton should be entrusted with the task of drawing up preliminary 
resolutions; and at a further suggestion by Mr. Symon, Mr. Barton 
undertook the duties of " Leader of the Convention." His first step 
was to move a series of resolutions enunciating a few leading principles 
and the general outlines of a Constitution, almost exactly in the form of 
Parkes' resolutions of 1891. One new feature, however, was a pre- 
liminary affirmation, understood to have been suggested by Mr. Wise, 
that the purpose of the union was ''to enlarge the powers of self- 
government of the people of Australia." The debate on these resolu- 
tions occupied seven sitting days, and had the important practical 
result of bringing the members of the Convention iuto touch with one 
another, and of making known their different views. Mr. Barton, in 
an admirable speech, appealed to the Convention to approach the 
question with an open mind and in a spirit of compromise ; and 
explained that the object of the resolutions was to have a preliminary 
debate wide enough in its scope to bring out every view and opinion 
on the main issues, and yet to avoid, at this stage, any final judgment 
upon non-essentials. He touched upon the different features of the 
resolutions, in a non-contentious way ; but thought it more important 
for the new members, whose opinions were not on record, to have an 
opportunity of being heard. Sir Richard Baker followed with a 
weighty presentation of the argument for giving the Senate equal 
power with the House of Representatives. Responsible Government 
was, he said, inconsistent with true Federation; it would either kill 
Federation or Federation would kill it. No Government could carry 
on if it needed majorities in both Chambers; and if it were only 
responsible to one — if one Chamber were to predominate — the whole 
principle of Federation would be gone. Responsible Government had 
never been tried in a Federation — for Canada was none — and was 
inconsistent with the essential conditions of Federation. He there- 
fore favoured the Swiss form of Executive. 

Sir George Turner set the example of giving his views in greater 
detail. He indicated his attitude on most of the debatable questions, 
and from then onward the debate spread over the whole ground 
covered by the resolutions. A few points of difference began to loom 
up and assume importance from the first. Foremost among these 
was the power to amend money Bills, as to which it soon became 
apparent that the representatives of the larger and the smaller colonies 
were both disinclined to compromise. The representatives of the small 
colonies stood out for a strong Senate, and were disposed to let Re- 
sponsible Government take its chance. The representatives of the 
large colonies either denied Sir Richard Baker's premiss that two 
Houses with equal powers were necessary for an ideal Federation, 
or argued that the ideal must be sacrificed to practical necessities. 



THE FEDERAL MOVEMENT IN AUSTRALIA. 167 

The need of some provision for deadlocks was forcibly urged by the 
Victorians. Both a joint sitting and a dissolution of the Senate were 
suggested, but the preference seemed to be for some form of referen- 
dum — the Victorian Premier and his Attorney-General, Mr. Isaacs, 
especially favouring a dual referendum to the people and the States. 
By other members, every deadlock provision was objected to as 
destroying the Senate's power to protect State interests. The financial 
question was debated at some length — especially by Mr. Holder, Mr. 
McMillan, Sir Phillip Fysh, and Mr. Walker — but rather by way of 
stating: the difficulties than of solving them. The debate closed on 
31st March, when Mr, Barton replied, and the resolutions were 
carried. 

Although the resolutions were practically those which had been 
debated in 1891, this discussion was by no means a waste of time. It 
showed that the point of view had moved onward considerably in these 
six years; and whilst on certain matters — such as the money Bill 
question — which had been thoroughly threshed out in the former 
Convention, there was little new light to be had, yet on matters which 
had previously been touched slightly or not at all, the debates showed 
a preparedness to come to closer quarters. It was now possible to 
proceed to frame a new Bill on lines which tbe opinion of the new 
Convention seemed to suggest. 

Select Committees. — The next step was to frame a first draft of 
the new Bill ; and for this purpose Mr. Barton moved resolutions for 
apportioning all the members of the Convention among three Com- 
mittees. Committee No. 1, for the consideration of constitutional 
machinery and the distribution of functions and powers, was to consist 
of four members from each delegation ; Committee Xo. 2, for the con- 
sideration of provisions relating to finance, taxation, railways, and 
trade regulations, of three members from each delegation; and Com- 
mittee No. 3, for the consideration of provisions relating to the estab- 
lishment of a federal judiciary, of two members from each delegation; 
whilst the several Premiers were to be ex ojjicio members of each 
Committee. The Finance and Judiciary Committees were to report 
to the Constitutional Committee, which was then to prepare and 
submit to the Convention a draft Constitution Bill. The various 
delegations then selected their members for the different Committees, 
which were formed as follows : — 

Constitutional Committee. — New South Wales : Sir Joseph 
Abbott, Mr. Barton, Mr. Carrutliers, Mr. O'Connor. Victoria : Mr. 
Deakin, Mr. Isaacs, Dr. Quick, Mr. Trenwith. South Australia : Sir 
Richard Baker, Dr. Cockburn, Sir John Downer, Mr. Gordon. 2'a*- 
'mania : Mr. Brown, Mr. Douglas, Mr. Lewis, Mr. Moore. Western 
Australia : Mr. Hackett, Mr. Hassell, Sir James Lee-Steere, Mr. Sholl. 

Finance Committee. — New South Wales : Mr. Brunker, Mr. 
Lyne, Mr. McMillan. Victoria : Sir Graham Berry, Mr. Fraser, Sir 
William Zeal. South Australia : Mr. Holder, Mr. Howe, Mr. Solo- 
mon. Tasmania : Sir Phillip Fysh, Mr. Grant, Mr. Henry. Western 
Australia : Mr. Loton, Mr. Piesse, Mr. Taylor. 

Judiciary Committee. — New South Wales : Mr. AValker, Mr. 
Wise. Victoria : Mr, Higgins, Mr. Peacock. South Australia : Mr. 



168 HISTORICAL INTRODUCTION. 

Glynn, Mr. Symon. Tasmania : Mr. Clarke, Mr. Dobson. Western 
Australia : Mr. James, Mr. Leake. 

The Judiciary Committee finished its work on 6th April ; in the 
other two Committees the debates were somewhat prolonged, and they 
did not finish till 8th April. Then a Drafting Committee, appointed by 
the Constitutional Committee, and consisting of Mr. Barton, Sir John 
Downer, and Mr. O'Connor, prepared a Bill, which was submitted to 
the Convention on 12th April. 

The First Adelaide Draft. — Mr. Barton, who was chairman of 
both Constitutional and Drafting Committees, brought the Bill up, 
and on the motion to consider it in Committee he explained its pro- 
visions categoricallv, with special reference to the points in which it 
differed from the Bill of 1891.— Conv. Deb., Adel., pp. 432-59. 

The framework and form of the Bill followed closely the Bill of 
1891, which the draftsmen had " endeavoured to treat as reverently 
as possible." To facilitate reference, however, the numeration of 
clauses, instead of beginning afresh with every chapter, was made 
consecutive through the whole Constitution. The chief differences 
from the Bill of 1891 were as follows : — 

A change in nomenclature had been made by substituting the 
more expressive and more accurate term " States Assembly " for 
" Senate." As to the constitution of the States Assembly, the im- 
portant change — previously I'ecommended by the Bathurst Convention 
— had been made, of substituting, for election by the Parliaments, 
direct election by the people of each State as one electorate. The 
States Assembly was to be composed of six members from each State. 

The Parliament. — For the House of Representatives, in place of 
the quota of one representative for every 30,000 people, alterable by 
Parliament, there was a provision for calculating the quota in such a 
way as to make the number of members as nearly as practicable twice 
the number of the members of the States Assembly. The miiiimum 
of representatives to which any State should be entitled was raised 
from four to five. The duration of the House of Representatives was 
extended from three to four years; and the salary of members of both 
Houses was reduced from £500 to £400. The federal franchise in 
each State was, " until the Parliament otherwise provides," to be that 
of the State, but without plural voting. The power thus given to the 
Parliament to supersede the State franchises (at federal elections) by 
a federal franchise was a recognition, which the Bill of 1891 had. not 
contained, that the national franchise was a matter of federal concern. 
This principle was emphasized by the prohibition of plural voting. 

The legislative powers of the Parliament were somewhat ex- 
tended. New powers were given to make laws with respect to 
astronomical and meteorological observations, fisheries in intercolonial 
rivers, insurance, parental rights and the custody and guardianship of 
infants. The sub-clause giving legislative power as to the status in 
the Commonwealth of foreign and other corporations was extended to 
cover the general subject of foreign and trading corporations. In 
place of the sub-clause as to river navigation with respect to common 
purposes was a new provision giving the Parliament a far wider 
legislative power as to " the control and regulation of navigable 



THE FEDERAL MOVEMENT IN AUSTRALIA. 169 

streams and their tributaries within the Commonwealth, and the use 
of the waters thereof." On the other hand, the control of railways 
with respect to " transport for the purposes of the Commonwealth " 
was, to prevent misconception as to the extent of the power intended 
to be given, defined to appl j to '' military purposes " only. 

Money 'Bills. — One of the most important changes of all was in 
the powers of the Senate to amend Money Bills. In the Constitu- 
tional Committee, the representatives of the two most populous 
colonies had been outvoted, and the " compromise of 1891 " had been 
set aside. The settlement reached in 1891 had been that the House 
of Eepresentatives should have the sole power to originate bills 
appropriating revenue or imposing taxation, and that the Senate 
should have no power to amend Bills imposing taxation or appropriat- 
ing the necessary supplies for the ordinary annual services, but might 
instead suggest amendments in such Bills. The exclusive originating 
power of the House of Representatives was now cut down to Bills 
" having for their main object " the appropriation of revenue or the 
imposition of taxation ; and the provision that the Senate should not 
amend Bills imposing taxation was struck out altogether. 

Responsible Government. — A further safeguard was introduced to 
ensure the responsibility of Ministers to Parliament. In addition to 
the provision that Ministers of the Commonwealth should be capable 
of sitting in Parliament, it was expressly provided — following a pro- 
vision of the Constitution of South Australia — that no Minister should 
hold office for more than three months without a seat in Parliament. 

Judiciary. — The judiciary clauses, though rearranged, were not 
seriously altered. The term "The High Court of Australia" was 
substituted for "The Supreme Court of Australia;" and the High 
Court, instead of being left to the Parliament to establish, was estab- 
lished by the Constitution itself. A new power was given to " invest 
with federal jurisdiction " courts other than those established by the 
Commonwealth. Under the Bill of 1891, the Parliament might pro- 
vide that appeals which had previously been allowed from the State 
Courts to the Privy Council should for the future be brought to the 
Supreme Court of Australia ; the new Bill went further, and embodied 
this transfer of appellate jurisdiction in the Constitution itself. 

Finance. — The financial clauses were considerably altered. In the 
first place, a new provision was inserted requiring uniform customs 
duties to be imposed within two years after the establishment of the 
Commonwealth. As regards the basis of distributing the surplus 
revenue of the Commonwealth, three periods must be distinguished : — 
(1) Before the imposition of uniform duties; (2) for five years after 
the imposition of uniform duties; (3) after that period. For these 
three periods the basis of distribution was to be as follows : — 

(1) Before the imposition of uniform duties (that is, so long as 
the provincial tariffs should remain in force) each State was to be 
credited with the revenues collected in it from customs and excise 
duties, and from ''the performance of the services and the exercise 
of the powers" transferred to the Commonwealth. Each State was 
to be debited with the expenditure of the Commonwealth in respect of 
these duties, services, and powers, and also with a population share of 



170 HISTORICAL INTRODUCTION. 



the expenditure of the Commonwealth in the exercise of its original 
powers. The balance due to each State was to be paid monthly. 

(2) During the first five years after the imposition of uniform 
duties, expenditure was to be charged in the same way, and revenue 
was still to be credited to each State on the basis of its contributions. 
But with a federal tariff and intercolonial freetrader the State in which 
customs duty was paid would not necessarily be the State in which the 
dutiable article was consumed; and it was therefore provided that, 
notwithstanding the abolition of intercolonial tariffs, an account should 
be kept of imported dutiable articles passing from one State to 
another, and the duty chargeable thereon should be credited to the 
consuming State, and not to the State in which the duty was collected. 

(3) After that period, all expenditure was to be charged, and all 
surplus revenue distributed monthly, in proportion to population. 

The differences between this system and the system of 1891 were 
shortly these : under the Bill of 1891 all expenditure was to be 
charged in proportion to population, there being no distinction be- 
tween expenditure in connection with transferred services and 
expenditure in connection with original powers. Moreover, 
under the Bill of 1891 the second period, instead of being fixed for 
five years, was to last only " until the Parliament otherwise pre- 
scribes j^' and though it was no doubt contemplated that Parliament 
would ultimately prescribe the population basis, it was not imperatively 
required to do so. 

Other novel provisions of great importance were inserted, in the 
direction of guarantees that the Commonwealth should be economical 
in expenditure, and should return to the States a substantial share of 
the surplus revenue. A clause was inserted that for four years after 
the establishment of the Commonwealth {i.e., practically during the 
prospective life of the first Parliament) the total yearly expenditure 
of the Commonwealth in the exercise of its original powei-s and its 
transferred powers respectively should not exceed certain specified 
sums — which at this stage were left blank, but which were afterwards 
filled in by the figures £300,000 for original powers, and £1,250,000 
for transferred powers. (Con v. Deb., Adel., pp. 1053-6. The 
sum of £1,250,000 was intended to represent, not gross expenditure, 
but the excess of expenditure over revenue, other than taxation 
revenue, derived from the transferred services.) This provision 
had been suggested in the Finance Committee by Mr. lieid in 
order to indirectly satisfy the demands of the colonies which 
required a guarantee that their provincial finances would not be 
unduly disturbed, and at the same time to avoid imposing on the 
Commonwealth the necessity — Avhich would have been very obnoxious 
to freetraders — of raising heavy taxation through the Customs. The 
clause was supplemented by a further " guarantee " that during the 
first five years after the imposition of uniform duties the aggregate 
amount to be paid to the States for any year should not be less than 
the aggregate amount returned to them during the year last preceding 
the imposition of such duties. This was a compromise which, with 
the help of the clause limiting federal expenditure, Mr. lleid and his 
New South Wales colleajfues on the Finance Committee had succeeded 



THE FEDERAL MOVEMENT IN AUSTRALIA. 171 

in obtaining. Some of the other colonies had required the guarantee 
to be for each State individually, instead of for all in the aggregate, 
which would have thrown a far heavier obligation on the Common- 
wealth ; but in view of the strong objections from New South Wales 
the lesser guarantee had been accepted. 

Equality of Trade. — In the clauses dealing with equality of trade, 
the prohibition of preferences was practically the same as before ; but 
in place of empowering the Parliament to annul State laws derogating 
from freedom of inter-State trade, the new Bill contained an express 
provision that any law of the Commonwealth or a State which had 
the effect of derogating from such fi-eedom should be null and void. 
Parliament was also empowered to establish an Inter-State Commission 
to maintain and execute, upon railways and inter-State rivers, the 
provisions of the Constitution relating to trade and commerce. The 
members of the Commission were to be appointed in the same way 
and on the same tenure as the Justices of the High Court, and the 
Commission was to have such necessary powers of adjudication and 
administration as the Parliament should give it : but with the im- 
portant limitation that it was to have no powers in reference to any 
raihvay rates or regulations unless they were " preferential in effect 
and made and used for the purpose of drawing traffic to that railway 
from the railway of a neighbouring State." This was the first definite 
form of words proposed for the difficult purpose of forbidding unfair 
competition by the railways of the several States, whilst reserving to 
each State the control and general management of its own railway 
system. 

State Debts. — The clause empowering the Federal Parliament, with 
the consent of the States, to take over the whole or part of the debts 
of the States, was practically the same as in the Bill of 1891 ; though 
it seems that some members of the Finance Committee interpreted 
their instructions to the Drafting Committee as giving the power to 
take over the debts without such consent. — Conv. Deb., Adel., p. 453, 

State Governors. — In the chapter relating to "The States," the 
clause requiring that all communications by the Governors of the 
States to the Queen should be made through the Governor-General 
was omitted ; as was also the clause empowerinor the State Parliaments 
to determine the mode of appointment of the Governors. Both these 
clauses were thought to be an unnecessary interference with the State 
Constitutions. 

Amendment. — Lastly, an important change was made in the mode 
proposed for amending the Constitution. Every amending law was 
first to be passed, as before, by an absolute majority of each House of 
the Parliament ; but it was then to be submitted, not to State Conven- 
tions, but to the electors of the several States, and was not to be pre- 
sented for the Royal assent unless approved by the electors of a 
majority of States, and unless the people of the approving States 
were also a majority of the people of the Commonwealth. 

Mr. Barton haviug expounded the draft Bill, and explained that 
it represented not necessarilv his own or his co-draftmen's views, but 
resolutions of the several Committees, no time was lost in general 
debate, but the motion to go into Committee was carried, and Sir 



172 HISTORICAL INTRODUCTION. 

Richard Baker, who had already been appointed Chairman of Com- 
mittees, took the chair amidst cheers. 

The Bill in Committee. — Proceedings in Committee opened with 
a motion by Sir John Forrest to postpone all clauses up to clause 52 
in order that the Money Bill clauses might be taken first. The West 
Australian delegates, on account of a general election in that colony, 
would have to leave on 14th April. The burning question of the 
power of the Senate to deal with Money Bills was practically a battle 
between New South Wales and Victoria on the one hand, and the 
three less populous colonies on the other. As the Convention was 
constituted, the latter were in a majority ; in the Constitutional Com- 
mittee they had gained the day, and they could do so again in Con- 
vention. But with the West Australian delegates absent, the tables 
would probably be turned ; hence their desire to settle the question at 
once. The propriety of taking this course had already been discussed 
some days before, when it had become clear that a large majority of 
the Convention w^ould support Sir John Forrest's motion, and it was 
now carried with but little protest. 

Money Bill Clauses. — Then, on 13th April, commenced the last 
great debate on the Money Bill clauses — a debate which, though it 
occupied but two days, was certainly the most momentous in the Con- 
vention's whole history. It established the recognition by the Con- 
vention of the fact that it was a negotiating, and not a legislative, 
body ; that the decision of a majority of representatives within that 
Chamber went for nothing unless it were a decision which was accept- 
able to the people of all the colonies. Had that fact and its conse- 
quences not been recognized, the present prospects of Federation must 
have been wrecked, and at the outset there seemed some danger that 
this might happen. Sir John Forrest, for the small States, announced 
cheerfully and often that "we have a majority;" and it seemed for a 
time that the equal representation of the colonies in the Convention — 
a necessary principle in an assemblage of contracting States — would 
exercise an undue influence on the form of the Constitution. The 
recognition of the fact that they must defer to the wishes of majorities 
outside marked the turning point of the Convention, and the entry of 
the really federal spirit of compromise — a spirit which thenceforward 
grew, slowly but steadily, through all the sittings of the Convention, 
and spread from the Convention to the people. 

The real debate began with an amendment by Mr. Reid to insert 
a prohibition against the Senate amending " laws imposing taxation," 
and thus revert to the "compromise of 1891." He was prepared to 
give the Senate — "not as an antiquated power, never to he used, 
but as a real living power " — the right of rejection ; but the power of 
moulding finance must be with the House of Representatives. Sir 
George Turner followed, and said emphatically that he had gone a 
long way in conceding equal representation in the Senate, and that to 
give the Senate the power of amending taxation Bills was a proposition 
which he dare not submit to the people of Victoria, and which, if he 
did submit it, they would never accept. Sir John Downer, on the 
other side, argued that he was only asking for terms which existed in 
every legitimate Federation in the world. Mr. Kingston was the first 



THE FEDERAL MOVEMENT IX AUSTRALIA. 173 

to stand out from his South Australian colleagues, and adhere to the 
" compromise of 1891," which had been deliberately arrived at after 
deep consideration, and any departure from which would imperil the 
cause of Federation. Mr. McMillan, on the other hand, differed from 
his New South Wales colleagues, on the ground that a revising 
Chamber, without the amending power, is ineffectual. With these 
exceptions the ranks of the opposing colonies seemed unbroken, till ,5^ 
Mr. Glynn announced that as a representative, and not a delegate, he 
deemed it his duty to give way. Mr. Carruthers carried the war into 
the enemy's camp, proposed to deny the Senate even the power of 
suggesting amendments, and withdrew his assent to equal representa- 
tion in the Senate. Later on Mr. Henry, the last speaker of the day, 
announced his secession from the fast dwindling majority, and thought 
that he could support Mr. Keid's amendment without emperilling State 
rights. Xevertheless, had the vote been taken that evening, the 
amendment would assuredly have been defeated. But Mr. Barton, 
thanks to a pro^ddential catarrh, induced the Committee to report 
progress, and a night's reflection turned the tide. When the Conven- 
tion met next morning the battle was practically won, and Mr. Barton 
clinched the victory by a forcible appeal to the representatives of the 
small States not to take a step which the people of the two great 
colonies would regard as an ultimatum, and which would inevitably 
imperil the chances of union. Mr. Kingston supported him, and 
scored a palpable hit by pointing out that the Parliament of South 
Australia, when dealing in Committee with the Bill of 1891, had raised 
no objection to the '"' compromise,'^ and that there had never been any 
indication that the people disapproved of it. Two Tasmanians, Mr. 
Brown and Mr. Lewis, in the interests of Federation, declared for the 
amendment; and Mr. McMillan, for the same reason, determined to 
vote with his colleagues. On division, Mr. Eeid's amendment was 
carried by 25 votes to 23. 

The Federal Parliament. — The name "States Assembly" had 
already been rejected in favour of the more familiar "Senate;" and 
now Mr. Higgins proposed an amendment providing that each State 
should be entitled to a number of Senators to be determined by a 
sliding scale, intermediate between equal and proportional representa- 
tion. His argument was that " State rights " were protected by the 
limitation of federal powers in the Constitution, and that in the defined 
sphere of national legislation State lines ought to be obliterated. To 
this it was replied that the true justification of equal representation 
was, not that it was a theoretically ideal principle, but that it was a 
matter of terms and conditions between equal contracting parties. 
The amendment was defeated by 32 votes to 5. Soon afterwards Mr. 
Solomon proposed a similar sliding scale for the House of Representa- 
tives, but this was promptly negatived. 

The question of the federal franchise raised some discussion. 
Mr. Holder first proposed an amendment to give every adult man and 
woman a vote ; but this was criticized as being a rash experiment, and 
an attempt at dictation which would probably be resented in some of 
the colonies. It was negatived by 23 to 12. He then, by way of 
compromise, proposed that "no elector now possessing the right to 



174 HISTORICAL INTRODUCTION. 

vote shall be deprived of tliat right ^' — the object being to ensure that 
the Federal Parliament, if it should exercise its powers of fixing a 
federal franchise, should not disfranchise the women of South Aus- 
tralia. This was strongly opposed, not only as being too wide, but 
also as preventing the Federal Parliament from framing a uniform 
franchise except by including women's suffrage. Mr. Holder even- 
tually withdrew this in favour of a provision — drafted^ though not 
approved, by Mr. Barton — which was carried on division by 18 votes 
to 15, and which now forms sec. 41 of the Constitution. In effect, it 
guarantees to every State elector a federal vote; so that the Federal 
Parliament, though it can give the right to vote at federal elections, 
cannot withhold that right from any elector of a State. 

In the ' legislative powers of the Federal Parliament several 
changes were made. '^ Telephonic and other like services " were added 
to telegraphs ; but an amendment by Mr. Holder, to limit the postal and 
telegraphic power to services " without the boundaries of the Com- 
monwealth" — reserving to the States the control of internal and 
inter-State services — was defeated by 30 votes to 5. The power as to 
river fisheries was omitted. An effort by Mr. Higgins to insert a new 
sub-clause dealing with "conciliation and arbitration for the preven- 
tion and settlement of industrial disputes extending beyond the limits 
of the State concerned" was negatived by 22 votes to 12. 

The River Question. — The chief debate on Legislative powers Avas 
in connection with the sub-clause, inserted by the Constitutional 
Committee, " The control and regulation of navigable streams and 
their tributaries within the Commonwealth and the use of the waters 
thereof." Mr. Gordon, who was responsible for the sub-clause, pro- 
posed to cast it into a somewhat less sweeping form by restricting it 
to the Rivers Murray, Darling and Murrumbidgee, and their tribu- 
taries. 

The debate which followed, and which was only preliminary to a 
keener and more prolonged debate at the Melbourne sitting, needs for 
its explanation a short statement of the peculiarities of this great 
river system, and of the interests of the several colonies in it. The 
one great river system of Austi'alia extends through four colonies 
— Queensland, New South Wales, Yictoriai, and South Australia. Its 
watershed embraces almost the whole of New South Wales, except 
the narrow strip east of the dividing range ; whilst some of the sources 
of the Darling are in Queensland, and some of the sources of the 
Murray are in Victoria. The lower part of the united stream runs 
for some hundreds of miles through South Australia to the sea. Thus 
the chief catchment area is in New South Wales, and the outfall in 
South Australia. The peculiarities of these rivers, and the causes 
which affect their flow, are as yet very imperfectly understood. Tiie 
Darling is intermittent ; sometimes a broad navigable stream, stretch- 
ing into immense backwaters and billabongs ; sometimes a mere chain 
of waterholes. It is fed by the irregular tropical rainfalls of Queens- 
land, and by the lighter and still more uncertain rains of New South 
Wales. The Murray has a more reliable source in the snows of the 
Great Divide, and is generally navigable as far as Echuca. In a 
country of vast distances, scanty rainfall, and unlimited thirst, these 



THE FEDERAL MOVEMENT IN AUSTRALIA. 175 

rivers are of immense importance both as highways of commerce and 
as channels for the water necessary for the development and settle- . 
ment of the land ; whilst the problem of their best utilization for ) 
either purpose involves vast schemes and undertakings. 

Of the colonies represented in the Adelaide debate, Tasmania 
was a disinterested onlooker, Victoria was concerned to a certain 
extent, and the real issue was between South Australia as claimant i 
and Xew South Wales as defendant. South Australia's interest was 
mainly in the maintenance and improvement of a navigable highway 
of the utmost importance to her trade with Xew South Wales and 
Victoria ; whilst New South Wales was impressed with the supreme 
importance of the waters of the rivers for the development of her 
territory. Extensive irrigation works in Victoria, and great conserva- ' 
tion schemes in New South Wales, had alarmed South Australia ; ' 
there had been much correspondence between the Governments and 
a Royal Commission in Adelaide, but South Australia's claim to 
definite riparian rights had not received much recognition. 

Mr. Gordon's -contention was that riparian rights between 
neighbouring States were based on natural justice, and recognized by 
international law; and that the great river system of Australia, withf 
all its tributaries, could only be dealt with justly by federal control. ' 
There were riparian rights between States as well as between indi- 
viduals, and they ought to be defined by the Federal Parliament. 
Mr. Carruthers, the New South Wales Minister for Lands, pointed 
out that the Australian rivers were unique, and English riparian laws 
utterly inapplicable. New South Wales was responsible for the 
settlement of territory, and could never be persuaded to give up con- 
trol of the water. Mr. Gordon protested that he only asked for " a . 
tribunal ;" but Mr. Deakin pointed out that there were no settled ' 
principles which a tribunal could apply, and urged " the unwisdom of 
endeavouring to include in the Federal Constitution the settlement of 
a problem such as this — the acquirement, in point of fact, under this 
Constitution of a legal right where at present no legal right exists or 
is enforceable." The New South Wales delegates were prepared to 
grant federal control, for purposes of navigation, of rivers forming a 
boundary between States — practically, that is, of the Murray ; but 
they protested against the Federal Government being able to impound 
waters wholly within a colony — against New South Wales being made, 
in Mr. Reid's phrase, " a catchment area for South Australia." Sir 
John Downer and Mr. Symon were prepared to accept this, and Sir 
John Downer moved an amendment to make the sub-clause apply 
only to " rivers running through or on the boundaries of two or more 
States, so far as is necessary to preserve the navigability thereof." 
Mr. Reid, however, objected to the phrase " preserve the navigability," 
as being dangerous and ambiguous. To regulate navigation was 
one thing, to " preserve navigability " another ; and in the case of 
rivers now intermittently navigable might mean anything. Sir John 
Downer's amendment was negatived by 24 votes to 10, and the sub- 
clause was then negatived by 25 votes to 10. 

Mr. Gordon then proposed a new sub-clause, " The control of the 
navigation of the river Murray, and the use of the waters thereof." 



A< 



176 HISTORICAL INTRODUCTION 

An amendment by Mr. O'Connor, to omit the words relating to the 
use of the waters, was negatived, and an amendment by Mr. Oar- 
ruthers to add " from where it forms the boundary between Victoria 
and New South Wales to the sea/' was carried. In this form the 
sub-clause was agreed to. The decision of the Adelaide Convention 
was therefore to give no express federal control of rivers generally, 
but only of the Murray from where it first forms an inter-State 
boundary. 

Railways. — Doubts had already been expressed whether the sub- 
clause empowering the Federal Parliament to deal with matters 
referred to it by the States would extend to the taking over of the 
railways ; and accordingly on re-consideration sub-clauses were added 
by Mr. McMillan to allow the Commonwealth^ with the consent of a 
State, to take over the railways of the State on terms arranged be- 
tween them, and also to undertake railway construction and extension 
with the consent of the States concerned. But an amendment by 
Mr. Walker, to include the railways among the departments taken 
over at the outset, was negatived by 18 to 12. 

The Finance Clauses. — In the financial clauses some important 
amendments were made, though the debates were short. This part of 
the Bill was reached on 19th April; and on the clause dealing with 
^ \-\ the distribution of the surplus, Mr. McMillan explained the difficulties 
S A^ which the Finance Committee had had to meet. These difficulties 
° arose out of the widely different fiscal policies of the colonies. Three 
of them were, in different degrees, distinctly protective; Western 
Australia, being at present chiefly engaged in the mining industry, 
was in the abnormal position of raising nearly all her revenue through 
the customs; whilst New South Wales was absolutely freetrade. 
Until the imposition of the uniform tariff, the distribution of the 
surplus would be chiefly a matter of book-keeping, and would present 
no special difficulties. The question was how to introduce the 
uniform tariff without dislocating the finances of the States. If 
the debts were taken over, or if an equivalent minimum return of 
surplus to the States were guaranteed, New South Wales would be 
placed in a difficult position, because this would practically mean dic- 
tating the fiscal policy of the future. In any case, there must be a 
federal tariff which would considerably increase customs duties for the 
people of New South Wales ; and for the first few years, till trade had 
time to adjust itself, New South Wales would pay a disproportionate 
amount through the customs, and would lose heavily by a per capita 
system of distribution. Therefore the Finance Committee had been 
driven to adopt for five years " this detestable system of book-keeping" 
— which, though perfectly fair, would be "a great nuisance." He 
believed that the only way was to leave the problem of distribution to 
the Federal Parliament as " the great negotiator." 

Mr. Holder followed, and developed the question from the point of 
view of the small States. The small States did not know how, without 
the customs revenue, they could make both ends meet ; and his point 
was — " while we would like from the point of view of the Federal 
Treasurer to leave him free, we cannot from the point of view of the 
States." They could not leave the Commonwealth free to adopt a 



THE FEDERAL MOVEMENT IN AUSTRALIA. 177 

purely freetrade tariff which would destroy the customs revenue and 
ruin the States. With a Senate strong enough to insist on the 
interests of the small States, he would have trusted the Federal Par- 
liament; as it was, he preferred to tie the hands of the Federal 
Treasurer rather than risk the solvency of the States. He believed 
that ultimately the "per capita system would be fair, and he would like 
meanwhile to see some plan which would obviate the objectionable 
book-keeping. As to the " guarantee " question, he objected strongly 
to the clause limiting expenditure, and made a suggestion — which 
contained the germ of what was afterwards known as the ''Braddon 
clause " — that the Commonwealth should return to the States a fixed 
percentage, say 70 per cent., of the customs revenue collected. 

Sir George Turner then took up the discussion, and objected to 
Mr. McMillan's suggestion as simply shelving the difficulty and giving 
out to all Australia that it was insoluble. To secure support for the 
Bill, they must propound something definite. There must be a fixed 
minimum amount to be returned. He would like to see, in place of 
the guarantee of an aggregate amount, a guarantee to each State of 
an amount equal to what it received before the uniform tariff. They 
might fix a percentage to be returned, in order to guard against 
federal extravagance, and fix a minimum return, in order to guard 
against an insufficiency of federal taxation. As to the basis of distri- 
bution, he too did not like the book-keeping, and would welcome some 
arrangement to dispense with it. 

Mr. Reid came last, and argued that a per capita basis would, for 
some years, mean a heavy loss to Xew South Wales, whilst industry 
and commerce were adjusting themselves to the new conditions. At 
the same time, he was anxious to abolish the book-keeping system as 
soon as possible, and would agree to a sliding scale, ending in the 
per capita system after five years. He objected to fixing any minimum 
return, or to loading the Commonwealth with the debts. Xew South 
Wales was prepared, with the odds against her, to trust the fiscal 
question to the Federal Parliament ; she was not prepared to give the 
Commonwealth burdens which would compel a high tariff. Mr. Holder, 
Sir George Turner, and Mr. Reid having expressed a willingness to 
confer in order to devise a scheme for dispensing with the book- 
keeping system, Mr. Barton secured the postponement of the financial 
clauses in order that the Treasurers might consult together on the 
subject. 

On 21st April, the debate was resumed. First of all Sir Philip 
Fysh moved an amendment providing that in place of the " guarantee" 
to the States of an aggregate minimum, there should be a guarantee 
to each individual State of the amount it received before the unifonn 
tariff, Mr. Reid opposed this stoutly as involving a gigantic system 
of taxation for the purpose of meeting the possible requirements of 
one small State, Sir George Turner, who had previously favoured 
this plan, admitted the force of the Xew South Wales arguments, and 
the amendment was negatived on the voices. 

Then Mr. Reid brought up the proposal of the Treasurers for 
shortening the book-keeping period. This wa« based on a sliding 
scale, by which the apportionment of revenue, beginning on the book- 

12 



178 HISTORICAL INTRODUCTION. 

keeping or contribution basis, would slide in five years to a per cajnta 
basis. Accounts were to be kept on the borders for one year only 
after the imposition of a uniform tariff. That year was to be taken as 
a test of the inequalities of contribution; and on the assumption that 
those inequalities would steadily decrease, and would disappear in five 
years, it was provided that the apportionment of revenue should scale 
down in five years from the basis shown by the test year to a per 
capita basis. 

This plan, which had been chiefly worked out by Mr. Holder, was 
strongly recommended to the Convention, and was adopted with very 
little discussion. The result was that the preliminary basis, for the 
period prior to the uniform tariff, remained unaltered; the final basis, 
after five years from the uniform tariff, also remained unaltered (see 
p. 169, supra); but for the intermediate period, instead of five years' 
book-keeping on the borders, there was to be only one year's book- 
keeping, followed by four years' scaling down from the contribution 
basis, which ruled before the uniform tariff, to the per capita basis 
which was to rule ultimately. 

The only other important financial discussion was in connection 
with taking over the public debts of the States. The clause as 
submitted to the Convention provided that the Parliament might, with 
the consent of any State, take over the whole or any part of the public 
debt of the State. Sir George Turner, with most of the Victorians, 
thought it ought to be compulsory to take over all the debts ; but in 
view of Mr. Reid's strong objection to this course, as dictating a higli 
tariff, he did not press this proposition. He still urged, however, that 
the Parliament ought to take over all or none, and ought not to have 
the power of favouring some States in preference to others. The 
arguments against compulsory federalization of debts were two :— 
(1) That it would amount to a permanent endowment of the States, 
and would thus dictate a high tariff policy ; (2) that it would make a 
present of the federal credit to the bond-holders, and prevent the 
Federal Treasurer being able to bargain for a profitable conversion 
before maturity. On Sir George Turner's motion, the words requiring 
the consent of the States, and also the words empowering the Parlia- 
ment to take over " any part " of the debt of a State, were struck out. 
In order, however, to giye a wider discretion to the Parliament and at 
the same time prevent unequal treatment of the States, it was pro- 
vided that a " ratable proportion " of the several debts, on a popula- 
tion basis, might be taken over. The application of the clause was 
also restricted to debts "existing at the establishment of the Common- 
wealth." The clause as passed, therefore, did not compel the taking 
over of the debts, but empowered the Federal Parliament, at its own 
discretion, to take over the debts of all the States as existing at the 
establishment of the Commonwealth, or a ratable proportion thereof. 

Railway Rates. — A someAvhat indefinite debate took place on the 
subject of preferential rates. On the clause prohibiting derogation 
from freedom of inter-State trade, Mr. Gordon moved an amendment 
trying to define with some minuteness an unfair preference. The test 
by which he proposed to determine the fairness of a preferential rate 
was to enquire whether or not the trade attracted by that particular 



THE FEDERAL MOVEMENT IN AUSTRALIA 179 

rate was or was not profitable ; but the proposal was overwhelmed 
with criticism and was ultimately withdrawn. In the clause dealing 
with the powers of the Inter-State Commission, the Victorians ob- 
jected to the prohibition of preferential rates made *' for the purpose 
of drawing traffic from the railway of a neighbouring State," on the 
ground that it was one-sided, and tied the hands of Victoria in com- 
peting for the Riverina trade, whilst it left Xew South Wales free. 
The problem was a most difficult one, involving important commercial 
and political interests. Under the provincial system, each colony had 
reinforced its barrier of custom-houses by a war of railway rates and 
railway policies. This was especially the case between Xew South 
Wales and Victoria. Each colony had built its railway lines and 
arranged its rates with a view to concentrating as much trade as 
possible in its own capital. Xew South Wales, having an immensely 
larger area than Victoria, had tried to gather into Sydney all the 
trade of that area, and had built octopus railways into the south- 
western or " Riverina " district — taking care not to extend them quite 
to the Victorian border, lest some of the trade might flow the wrong 
way. A large area of Xew South Wales, however, is geographically 
nearer to Melbourne than to Sydney ; and Victoria ran numerous 
lines to the border in order to tap the trade of these outlying dis- 
tricts of Xew South Wales. Then began a system of frankly com- 
petitive rates ; Victoria offering special reductions — in some cases 
amounting to 66 per cent. — to goods coming from across the border, 
while Xew South Wales endeavoured to retain the trade by prohibitive 
rates for produce travelling towards Melbourne, and by extremely 
tapering long-distance rates for produce travelling to Sydney. This 
'' cut-throat " competition between the two railway systems was more- 
over complicated by the competition of both with river steamers 
trading to South Australia. As regards the " long-haul " rates in 
Xew South Wales, there was also the difficulty that tapering rates for 
long distances are required by the soundest principles of railway 
management ; and it seemed impossible to ascertain the precise point 
at which it could be said that a differential rate became preferential 
and unfederal in character, or the precise degi'ee of tapering which 
was necessary for the development of territory, and in the interests of 
the producer and the carrier alike. The only obvious test — that of 
the direct profitableness or unprofitableness of the rate to the carrier 
— was inapplicable because the carrier, being the Government, had 
public and political interests which might justify it in running the 
railways at a loss for the public benefit. 

This war of railway rates had resulted in considerable bitterness 
between the colonies, and considerable loss to the railways and the 
public ; and everyone was agi-eed that the Constitution ought, if 
possible, to contain some power of regulating the competition. Sir 
George Turner and his colleagues, however, feared that the particular 
provision in the Bill would prevent Victoria from competing to draw 
trade from beyond her boundary, whilst it would allow Xew South 
Wales to compete to retain trade within her boundary. In other 
words, they feared that it recognized the right of each colony to 
charge preferential rates with a view to drawinar the trade from its 



180 HISTOKICAL INTRODUCTION. 

own outlying territory to its own ports ; that instead of being miitual, 
it was anti-federal, inasmuch as it restricted each colony to its own 
produce ; and that it thus favoured the long distance railways of New 
South Wales at the expense of the short distance railways of Victoria. 
The answer on behalf of New South Wales was that the clause was 
mutual so far as inter-State traffic was concerned, and that the Consti- 
tution ought not to interfere with the purely internal trade of a State. 
The arguments may be summed up thus: The Victorians — and with them 
the South Australians — claimed that "■ trade should flow in its natural 
channels." The New South Wales representatives did not dispute 
this as an abstract proposition, but objected to extending the federal 
control to any trade that was not " inter-State trade/' and claimed the 
right of each State to control its internal trade, subject only to the 
condition that freedom of trade should not be derogated from. There 
was no attempt to justify the policy of Victoria in carrying New 
vSouth Wales goods at cheaper rates than her own, nor the policy of 
New South Wales in charging prohibitive rates on goods destined for 
Victoria. The real question as to which opinion was divided was 
whether a limit ought to be put to the right of New South Wales to 
taper her long-distance rates. Victoria objected to giving up her ad- 
mittedly anti-federal weapon unless New South Wales were disarmed 
also ; New South Wales argued that her tapering long-distance rates, 
though they might indeed be used as an anti-federal weapon, were an 
essential means to the settlement of her land and the development of 
her resources. No definite solution of the difficulty was arrived at; 
but on Sir George Turner's motion the objectionable limitation was 
struck out, and the powers of the Inter-State Commission were left 
unhampered by any definite instructions. 

Amendment of the Constitution. — In the clause providing for the 
amendment of the Constitution, an important change was made. In 
place of the provision requiring (1) that the electors of a majority of 
the States should approve the proposed law, and (2) that the people 
of the States so approving should be a majority of the Commonwealth, 
it was provided that the law should be approved by (1) the electors of 
a majority of the States, and (2) a majority of all the electors voting. 
A difl&culty, however, arose with regard to the women's suffrage in 
South Australia, which, if the votes in the different States were added 
together, would give double influence to that State (assuming that 
there were as many women voters as men). To meet this, it was pro- 
vided that the votes of States in which adult suffrage prevailed should 
be halved before being added to the others. 

Deadlocks. — The question of the insertion of a clause for the 
solution of deadlocks was not ignored. During the sitting, suggestions 
to this end had been circulated by several members; one by Mr. 
O'Connor, providing for a joint sitting of the two Houses ; one by Mr. 
Carruthers to a similar effect; one by the Premier and Attorney- 
General of Victoria providing for a dual referendum; one by Mr. 
Wise, providing for a consecutive dissolution, first of the House of 
Representatives, and then of the Senate; and one by Mr. Higgins 
giving the Governor-General a general power to dissolve both Houses. 
When the stage was reached for the insertion of new clauses, Mr. 



THE FEDERAL MOVEMENT IN AUSTRALIA. 181 

Wise moved his proposal providing that if the House of Representa- 
tives should pass a Bill to which the Senate would not agree, and if 
the Governor-General should on that account dissolve the House of 
Representatives, and if after the dissolution the House of Representa- 
tives should again pass the Bill and the Senate again disagree, the 
Governoi'-General might dissolve the Senate. He pointed out that 
his two objects were (1) to preserve the independence of the Senate in 
all matters affecting State interests, and (2) to secure the dominance 
of the popular vote on all party questions which did not place the 
interests of one group of States against those of another. Mr. Barton 
argued that deadlocks had in fact nearly always arisen from attempts 
to " tack " matters of general legislation on to a money Bill, or to lump 
different kinds of taxation together in one Bill ; and that the Consti- 
tution, by prohibiting this, had already made, adequate provision 
against deadlocks. Mr. O'Connor had also come round to this opinion, 
and preferred to leave the Bill as it stood. Mr. Trenwith disagreed 
with this view, and argued that though the deadlocks due to " tack- 
ing " were the most acute and striking, there were frequent " dead- 
locks " consisting in the refusal of one House to pass matters of 
progressive legislation. The fact is that in this debate the word 
deadlock assumed a new and extended meaning, which, in subsequent 
discussion of the question, it has since retained. A " deadlock " 
originally meant a disagreement as to a Money Bill or some vital 
measure, the failure of which would paralyze the machinery of Govern- 
ment; but it now came to be used — for want of a better word — to 
describe any disagreement between the Houses on any matter of legis- 
lation. It was as yet by no means generally recognized that for 
" deadlocks," in this wider sense, any cure was necessary or desirable; 
and fears were expressed lest a clause intended to cure deadlocks 
should in fact have the effect of creating them. 

Mr. Higgins objected to Mr. Wise's proposal because it enabled 
the Senate, without risk to itself, to force the House of Representatives 
to a "penal dissolution;" and he moved an amendment to enable both 
Houses to be dissolved together in the first instance. This amend- 
ment was strongly opposed, especially bv the representatives of the 
small States, who thought that it would allow undue pressure to be 
brought to bear on the Senate by the Government of the day. Mr. 
Higgins' amendment was defeated by 24 votes to 7, and the original 
proposition was then defeated by 19 to 11. 

Mr. Isaacs then moved a series of clauses which had already been 
circulated by Sir George Turner and himself. They applied equally 
to both Houses, and provided that in the event of a disagreement 
about any Bill, the House in which the Bill originated might resolve 
'* that the proposed law is of an urgent nature," and might transmit it 
with any amendments agreed to by both Houses to the other House 

j for further consideration. If within a certain time it were not passed 
by the latter House, the oriofinatino: House migrht resolve that it be 

I referred to the direct determination of the people. The vote was to 
be taken in each State separately, and if the Bill was afl&rmed by " a 
majority of States containing also a majority of the population of the 
Commonwealth," it was to be presented for the Royal assent as though 



182 HISTORICAL INTRODUCTION. 

it had passed both Houses. Mr. Isaacs claimed that this scheme gave 
ample opportunities for reconciling differences^ and did not endanger 
either the independence of the Houses or the responsibility of the 
Ministry. The real debate had taken place on Mr. Wise's clause, and 
the new proposal was at once negatived by 18 votes to 13. 

All the mechanical devices subsequently discussed — the joint 
sitting, the consecutive or simultaneous dissolution of both Houses, 
and the referendum — were thus placed before the Convention at its 
Adelaide sitting. The refusal to adopt any of them at that stage was 
not meant as a final decision, but rather as an indication that the Con- 
vention was not yet satisfied that any provision was necessary, and at 
all events was not prepared to commit itself to any of the numerous 
alternative schemes. The whole question therefore remained open for 
future consideration. 

Adjournment. — The Bill was reported to the Convention on 22nd 
April, and next day the report was adopted. In the ordinary course 
of events, the Convention would then have adjourned, for not more 
than 120 days, in the terms of the Enabling Acts; but here a difficulty 
had arisen. The Premiers were all about to visit England for the 
Queen's Diamond Jubilee celebrations, and it was practically impossible 
to hold the adjourned sitting before September. The device was 
therefore adopted of moving that the Convention adjourn till 5tli May, 
and that '' at its rising on that day it do fm^ther adjourn till Thursday, 
2nd September, at 12 o'clock noon." Accordingly on 5th May — all 
the visiting delegates ha.ving long since departed — the Acting-Presi- 
dent took the chair, and, having solemnly but ineffectually ordered 
the bells to be rung for a quorum, declared that the Convention stood 
adjourned till noon on 2nd September, at Parliament House, Sydney. 



(11) CONSIDERATION BY THE LEGISLATURES. 



The next step under the Enabling Acts was the consideration of 
the Draft Constitution by the Legislatures of the several colonies, 
during the statutory adjournment of the Convention. 

New South Wales. — The discussion was begun by the Legis- 
lative Assembly of New South Wales on 5th May, 1898, Mr. 
Carruthers, in the Premier's absence, being in charge of the measure. 
The proceedings began with a protracted general debate, of a some- 
what monotonous character, which revealed many critics of the Bill, 
but few friends. The points most forcibly attacked were the equal 
representation of States in the Senate, the powers of the Senate with 
regard to Money Bills, and the financial clauses generally. The 
financial clauses had already been adversely criticised in a series of 
articles by Mr. R. L. Nash, financial editor of the Sydney Daily 
Telegraph. The gist of his argument was that Federation under the 
Bill meant added burdens and no savings ; that to meet the new ex- 
penditure and the remission of intercolonial duties there would have 
to be a great increase of duties on oversea imports ; that in Victoria, 
South Australia, and Tasmania there was practically no reserve power 



THE FEDERAL MOVEMENT IN AUSTRALIA 183 

of taxation ; and consequently that Xew South Wales would have to 
pay the whole cost of Federation, adopt a fiscal policy of which she 
disapproved, and submit to additional taxation to the amount of 
£1,500,000 — of which possibly £1,000,000 would be returned to her, 
to be spent extravagantly. His conclusion was that the only solution 
would be to provide for savings at least equal to the added expendi- 
ture, and that this could only be effected by the federation of the 
debts and railways. These forecasts had been based to some extent 
on a set of calculations placed before the Convention by the Govern- 
ment Statistician of Xew South Wales, which took as their basis the 
imports of the several colonies under their existing and widely-differ- 
ing tariffs, and deduced the amounts of revenue that would be contri- 
buted by each colony, assuming the imports remained the same, by 
applying to them first a uniform tariff on the lines of the Victorian 
tariff, then a uniform tariff on the lines of the South Australian tariff, 
and so on. The basic assumption, that the amount of imports would 
not be affected by the change in the import duties, had already been 
attacked in the Convention, and was demolished by Mr. Edward 
Pulsford in a series of articles in the Sydney Morning Herald, which 
were afterwards laid on the table of the Convention at the session. 
The supporters of the Bill denied that the estimated contributions of 
the colonies, thus arrived at, were even approximately correct. They 
also denied the assumptions that there would be no savings under the 
Bill, and that the other colonies were already taxed to the uttermost ; 
and maintained that when the necessary coiTections were made the 
groundwork of these gloomy predictions Avas cut away. The argu- 
ments of the critics, however, carried great weight, and formed the 
backbone of the Parliamentary opposition to the Bill. The general 
debate dragged on until 24th June, and on 7th Jidy the detailed dis- 
cussion began. 

The chief amendments suggested by the Assembly followed the 
lines already indicated. An amendment to abolish the Senate alto- 
gether received little support ; but the principle of equal representation 
was negatived, at an early hour in the morning, by a decisive vote of 
59 to 4. In its place was inserted a provision for proportional repre- 
sentation, with a minimum representation, for any State, of three 
members. The exclusive originating power of the House of Repre- 
sentatives was extended to all Appropriation Bills, irrespective of 
their " main object," and the power of the Senate to suggest 
amendments in Money Bills was struck out. The limitation of fedei-al 
expenditure, and the guarantee of the return of a minimum aggregate 
surplus, shared the same fate ; and the elaborate provisions for the 
distribution of the surplus were replaced by a clause leaving the 
whole question to the Federal Parliament. The clauses providing for 
an Inter-State Commission, and for taking over the debts, were struck 
out. A sweeping " deadlock " clause was inserted, providing that 
either House, in the event of a disagreement, might submit the dis' 
puted measure to a " mass referendum," at which a majority of all 
the electors voting should decide. Amendments of the Constitution, 
after having been passed by the Parliament, were to be submitted to 
a similar referendum, without regard to State majorities. 



184 HISTORICAL INTRODUCTION. 

In the Legislative Council, where Mr. Barton had charge of the 
Bill, the opposition was even more pronounced. By way of a general 
protest against State powers in the Constitution, and an affirmation 
of a more complete unification, after the Canadian model, the word 
" Commonwealth '' was replaced by Dominion, and the word "federal" 
was ruthlessly excised throughout. The Assembly's amendment as to 
Senate representation was adopted; but the Council, with an eye to 
the dignity of Upper Houses in general, left intact the poAver of the 
Senate to suggest amendments in money Bills. The destructive atti- 
tude of the House, however, was plainly shown in connection with the 
fi,nancial parts of the Bill. The taxing powei^s of the Federal Parlia- 
ment, through the customs or otherwise, were excised; in Chapter IV. 
nearly the whole of the financial provisions were omitted, leaving the 
Bill a blank. At this, Mr. Barton and Mr. O'Connor disclaimed all 
responsibility for the proceedings, and left the Chamber; but the 
Council protested the integrity of its intentions, and went on with its 
work of disappi'oval. It insisted that Sydney should be the federal 
capital ; but on the subject of deadlocks — true to the traditions of an 
Upper House — it made no suggestion. 

Victoria. — Criticism in the other colonies was much more moder- 
ate. In Victoria, both Houses accepted equal representation in the 
Senate, but suggested single-member electorates in preference to 
having each State as one constituency. The money bill clauses, even 
more emphatically than in New South Wales, brought out the par- 
ticular bias of each Chamber. The Assembly threw out, not only the 
Senate's power of suggesting amendments, but also the prohibitions 
against tacking; whilst the Council went so far as to claim for the 
Senate the full power of amendment. The Assembly struck out the 
plan for the distribution of the surplus, and objected to giving the 
Federal Parliament exclusive control of bounties; but otherwise it 
accepted the financial clauses. The Council contented itself with a 
general resolution " That, in the opinion of the Legislative Council of 
Victoria, the finance and trade proposals of the Commonwealth Bill 
require further enquiry and consideration." The Victorian complaint, 
however, was precisely the opposite to that of New South Wales ; the 
"guai-antee" for the return of revenue was thought insufficient, and 
there was a strong feeling in favour of an immediate per capita distri- 
bution of revenue. The Legislative Council — like that of New South 
Wales — left the matter of deadlocks alone; but the Assembly suggested 
three distinct schemes: — (a) That if the Senate disagreed with a Bill 
sent up by the other House, and if " on that account " the House of 
Representatives were dissolved, and if the Bill were again sent up and 
disagreed with, the Governor-General might dissolve the Senate ; (6) 
that if the Senate disagreed with any Bill sent up to it, the Governor- 
General might dissolve both Houses; (c) a modification of the Turner- 
Isaacs Adelaide proposition for a dual referendum, the two majorities 
required being (1) a majority of the electoral districts for the House 
of Representatives, and (2) a majority of all the electors voting. With 
regard to the amendment of the Constitution, the Assembly suggested 
that, in case of disagreement, either House without the concurrence 
of the other might submit an amendment to the electors; and also 



THE FEDERAL MOVEMENT IN AUSTRALIA. 185 

suggested that the final paragraph, forbidding certain amendments 
without the consent of the States concerned, should be omitted. 

South Australia. — In South Australia the Assembly carried an 
amendment for the election of federal representatives on the basis of 
" one adult one vote." The Assembly asked for the federal control of 
rivers to be extended to the " tributaries " of the Murray, whilst the 
Council asked for its extension to the " Darling, Murray, and Mur- 
rumbidgee," specifically. Both Houses decided in favour of giving 
power to the Senate to amend Money Bills, instead of the mere power 
of suggestion. The Assembly also passed an amendment providing 
for the election of Federal Ministers by the two Houses of Pai-liament 
for a term of three years, subject to dismissal by the vote of a joint 
sitting. The Council proposed to make the High Court consist of one 
Supreme Court Judge from each State; and it also adopted Mr. 
Gordon's attempted definition of a preferential rate. Lastly, the 
Assembly adopted a deadlock clause, providing that if, after continued 
disagreement upon any question, either House resolved that the ques- 
tion was one of urgency, the Governor-General might grant or refuse 
either a dissolution (apparently of both Houses) or a dual referendum. 

Tasmania. — In Tasmania the amendments made were somewhat 
less important. With regard to the origination of Appropriation 
Bills, the House of Assembly made the suggestion, which was subse- 
quently adopted by the Convention, to leave out the somewhat vague 
words as to the " main object " of the Bill, and to substitute a proviso 
that either House might originate appropriations of fines or penalties, 
or fees for licenses or services. This secured the desired result of 
giving the Senate power with regard to petty incidental appropriations, 
without opening debatable questions as the " main object " of the 
Bill. Both Houses were in favour of giving the Senate power to 
amend Money Bills. Both Houses also agreed to an elaborate scheme 
for the immediate taking over of the debts of the States, making the 
Commonwealth chargeable with the whole interest bill, and giving it 
an indemnity against each State for interest paid in respect of any 
excess of its indebtedness, on a per capita basis, over that of the State 
whose indebtedness was least. The Tasmanian Parliament did not 
wish for the insertion of any deadlock scheme ; but the Assembly 
provisionally suggested a scheme " for use in the event of the Con- 
vention deciding to make a provision to evade deadlocks, but not 
otherwise." It provided that in the event of a disagreement, followed 
by a dissolution of the House of Representatives, the law in dispute, 
if again carried by a four-sevenths majority of the House of Repre- 
sentatives, and then by a three-sevenths majority of the Senate, 
might be deemed to have passed both Houses. 

Western Australia. — The West Australian Parliament did not 
meet until 17th August. Its consideration of the Bill was short, and 
its amendments were few. Both Houses claimed for the Senate the 
power to amend taxation bills. In respect of the return of surplus 
revenue, both Houses asked for a guarantee, not in the aggregate 
merely, but to each individual State, and struck out the sliding scale 
of distribution ; whilst, for the ultimate basis of distribution, the 
Assembly rejected the per capita system in favour of a return in pro- 



186 HISTORICAL INTRODUCTION. 



portion to contributions. The Assembly also proposed to charge the 
Commonwealth with a proportion of the debts, on the basis, not of 
population, but of adult male population. Western Australia at 
present numbers an abnormally large proportion of adult males — a fact 
which goes far to account for her abnormally high revenue from 
Customs ; and it was argued that a factor which had so potent an 
influence on the incidence of taxation should not be ignored on the 
other side of the ledger. 

Survey of the Suggestions. — A comparison of the general trend 
of the amendments thus suggested in the five colonies is most interest- 
ing. The main lines of cleavage on constitutional points were two. 
There was in the first place a general opposition between the constitu- 
tional views of the more populous colonies on the one hand, and the 
less populous colonies on the other hand; the former inclining towards 
the absolute supremacy of the majority, independent of State boun- 
daries, and the latter towards some degree of control by a majority of 
States. There was also, in each colony, a conservative and a liberal 
yie^ — tl^e former, for the most part, represented by the Legislative 
Council^ and the latter by the Legislative Assembly. The Conserva- 
tive, or Upper House, sympathy was with a strong Senate ; and hence 
— partly by accident, and partly by a natural association of ideas — 
the Conservative view and the "particularist" or State right view 
tended to approximate, though their aims by no means coincided; 
whilst in the same way the liberal view and the nationalist view 
tended also to approximate. The result was a certain blurring of the 
lines of State cleavage. Just as in the Convention it seldom happened 
that any delegation voted solid, so in the Parliaments it seldom 
happened that the two Chambers quite agreed on their most important 
suggestions. 

But besides constitutional differences, such as those with regard 
to money bills and deadlocks, there were also differences of interest or 
policy, such as those with regard to the river question, the railway 
question, or the tariff question. On these matters the issues were 
far more clearly cut between the colonies immediately interested. 

On the whole, as to constitutional questions and commercial ques- 
tions alike, the draft constitution held a pretty fair balance between 
the conflicting views. The compromises made by the Convention 
were re-opened in the Parliaments in opposite directions. Thus with 
regard to Money Bills, the Legislative Assemblies of New South 
Wales and Victoria wanted to give the Senate less power; the Legis- 
lative Councils of those colonies were content Avith the clauses as they 
stood; whilst the Legislatures of the other colonies wanted to give the 
Senate more power. These different amendments represented the 
divergent views which the Convention had endeavoured, with remark- 
able success, to reconcile. 

In two points, however, there seemed to be considerable dissatis- 
faction with the Bill ; in respect to the financial clauses, and in respect 
to the absence of a " deadlock " provision. The Adelaide " sliding 
scale " of distribution had considerable merit as an attempt to bridge 
the gulf between the system of distribution according to contributions, 
which was admittedly necessary to begin with, and the system of 



THE FEDERAL MOVEMENT IN AUSTRALIA. 187 

distribution per capita, which was ultimately desirable. But it did 
not please New South Wales — to meet whose objections to immediate 
per capita distribution it had been expressly devised — nor was it 
approved in any other colony except South Australia — whose 
Treasurer, Mr. Holder, was the real author of the clause. As to dead- 
locks, the Legislative Assemblies of three colonies — NeAV South Wales, 
Victoria, and South Australia — agreed that some provision was 
necessary, though they differed in their ideas of what it should be. 
The Assemblies of Western Australia and Tasmania did not want any 
such provision ; nor did any of the Legislative Councils. 



(12) THE SYDNEY SESSION OF THE CONVENTION, 1897 



On 2nd September the Convention met in Sydney to reconsider 
the draft Constitution, together with the amendments suggested by 
the Legislatures. Some hopes had been held out that Queensland 
would be represented at this sitting, but they were disappointed. In 
June an Enabling Bill had been introduced in the Legislative 
Assembly of that colony, providing that representatives elected by 
the Parliament should attend the Sydney Convention, on condition 
that the draft Constitution should be reconsidered clause by clause. 
Mr. Thomas Glassey, leader of the labour party, had thereupon 
moved a resolution similar to that previously moved by Mr. Curtis, 
that no Bill would be acceptable which did not provide for the direct 
election of the representatives ; and a vote having been taken which 
amounted to a defeat of the Government proposal, the Bill was with- 
drawn on 14th July. On 29th July Mr. John Leahy moved a 
resolution affirming the desirability of Federation, and of Queensland 
being represented at the Convention, but this was ultimately dis- 
charged from the paper. At last, on 9th September, while the Con- 
vention was sitting, Mr. J. V. Chataway moved a resolution, which 
was duly carried, asking the Convention not to conclude its work till 
Queensland had an opportunity of being represented. Accordingly 
the colonies represented at the Sydney sitting were the same as before. 
There was a change in the West Australian delegation, the Hons. H . 
Briggs, M.L.C., F. C. Crowder, M.L.C., A. H. Henning, M.L.C., and 
H. W. Venn, M.L.C., taking the places of Messrs. Piesse, Loton, 
ShoU, and Taylor, who had resigned on 26th August. 

The business of the Convention involved not only the general 
reconsideration of the whole Bill in the light of recent discussion, but 
also the consideration of some 286 amendments, in all, suggested by 
the ten Houses of Parliament. The chairman (Sir R. C. Baker) 
"wisely decided that all these amendments should be put from the 
chair, and voted upon, as though they had been moved by a repre- 
sentative ; so that no Parliament could say that its suggestions were 
slighted. It soon proved, however, that the work before the Conven- 
tion was too much to be disposed of in the time at its disposal. A 
general election in Victoria was impending, which would call the 
Victorian representatives away ; and it became clear that another 



188 HISTORICAL INTRODUCTION. 

adjourninent would be necessary. In order, however, to settle some 
of the most important questions, it was decided once more to depart 
from the consecutive order of dealing with the clauses. Most of the 
debate at Sydney was monopolized by four great questions : the 
financial problem, the basis of representation in the Senate, the power 
of the Senate with regard to Money Bills, and the insertion of a pro- 
vision for deadlocks. 

The Financial Debate. — With regard to the financial clauses, 
the first step was to appoint a Finance Committee, consisting of the 
five Treasurers and one other representative from each delegation, to 
report upon Chapter TV. of the Constitution. Then followed a general 
debate, in which the whole financial question was discussed at large. 
The tenor. of the debate was critical rather than constructive; and 
though no conclusion was arrived at, the difficulties as they presented 
themselves to the several colonies were reviewed at length. The 
great central difiiculty was to formulate — while the nature of the 
federal tariff, and its operation, were still unknown quantities — some 
scheme of distributing the federal surplus which would not only be 
fair in itself, but would guarantee all the States against any dislocation 
of their finances. This difficulty arose out of the widely-difl^ering 
character of the existing tariffs of the colonies, and the differing 
degrees of their dependence on customs and excise revenue. At one 
end of the scale stood New South Wales, with a purely freetrade 
tariff and a large land revenue. The finances of that colony, under 
almost any system, would be secure ; what she feared was, not a 
deficiency of revenue for provincial purposes, but an unduly large 
increase of taxation through the customs. At the other end of the 
scale stood Western Australia, with a large unsettled mining popula- 
tion, and relying almost entirely on customs duties, a great proportion 
of which were collected on intercolonial produce. It w^as recognized 
that her abnormal position required special treatment, and that no 
system of general application could meet her needs. Between these 
extremes were the other three colonies — all relying largely on customs 
and excise, and all unwilling to resort, in any great degree, to direct 
taxation. The customs and excise revenues surrendered to the 
Commonwealth would be some four times as much as were needed for 
federal expenditure ; and each colony wanted some guarantee that it 
would get back, not only its fair share of what it contributed, but an 
amount sufficient to balance its provincial accounts. The two pro- 
blems were to guarantee that there would be a large surplus to dis- 
tribute, and to find a basis of distribution which would meet the needs 
of all the colonies. 

The basis of distribution provided by the Adelaide sliding scale 
had not found favour. As Mr. Holder said, it was "a child of misfor- 
tune — misfortune in that it was laid before the Convention and 
accepted [in Adelaide] on the faith of those who recommended it; 
never discussed, never explained — thrown into a cold world, without 
anybody to be father to it." Mr. Reid admitted its good points, but 
recognized that it had not inspired public confidence; and, in common 
with most of his delegation, fell back on the necessity of leaving the 
whole question to the Federal Parliament. The "unknown quantity^' 



THE FEDERAL MOVEMENT TN AUSTRALIA. 189 

of the federal tariff, it was contended, made it impossible for the 
Convention to solve the question ; a basis of experience was necessary. 
The other colonies were willing to " trust the Federal Parliament " to 
a certain extent; but they wanted some guarantee of their State 
finances. Methods were suggested for evading the difl&culty by 
saddling the Commonwealth with some of the obligations of the States 
— for instance, in respect of the debts, or the railways, or both — but 
all these plans, as Mr. McMillan pointed out, only " covered up " the 
surplus, and did not get rid of the problem of apportionment. The 
uncertainty surrounding the whole question was increased by the 
calculations of the statisticians, which were sometimes treated as 
reliable forecasts, and sometimes — with more truth — as deductions 
from unreal and improbable assumptions. The debate threw all the 
difficulties into high relief, and it was then left to the Finance Com- 
mittee to find a solution. 

Senate Representation. — The Senate debate took place upon the 
New South Wales suggestion to substitute proportional for equal 
representation. The opponents of equal representation proved to be 
only five in number. It must be noted, however, that most of its 
supporters justified it, not so much on the abstract principle of State 
equality, but as a concession to the smaller States, necessary to secure 
their assent to the Constitution, and expedient to secure the fair treat- 
ment of local interests. This view of equal representation in the 
Senate, as based not on abstract logic but on practical compromise, 
was emphasized by an amendment which made it clear that the 
guarantee of equal representation was given only to " original States," 
and was not extended to States which might afterwards enter the 
union, or be created within it by subdivision or otherwise. It is also 
noteworthy that many of the delegates who accepted equal represen- 
tation did so in the expectation, and on the understanding, that some 
provision would be inserted for securing the due subordination of 
State interests to national interests. The debate in fact pointed 
forward to the adoption of a deadlock clause which would place some 
restriction on the absolute veto of the Senate. The Convention 
explicitly affirmed the principle that the structure of the Federal Par- 
liament ought to ensure due consideration to State interests ; but it 
explicitly denied the doctrine that all federal legislation must 
necessarily receive the assent of a majority of the States. 

Money Bill Clauses. — In the Money Bill clauses only one sub- 
stantial amendment was made. The vague and somewhat sweeping 
power of the Senate to originate appropriation Bills whose "main 
object " was not the appropriation of revenue was taken away, and in 
its place was inserted the Tasmanian suggestion, drafted by Mr. Inglis 
Clark, giving the Senate power to originate Bills involving incidentally 
the appropriation of fines or fees. This provision was based upon a 
standing order of the House of Commons, which had already been 
adopted by the Legislative Assemblies of South Australia and Tas- 
mania. The amendment of the Legislative Council of Western Aus- 
tralia, to give the Senate power to amend taxation Bills, was debated 
at some length, but was defeated by 28 votes to 19. 

Deadlocks. — The longest and most important debate of the 
Sydney sitting was that upon deadlocks, which lasted from 15th to 



190 HISTORICAL INTRODUCTION. 

21st September. On this question several distinct suggestions had 
been made by the Legislatures ; and the clause first proposed from 
the Chair was that suggested by the Legislative Assembly of New 
South Wales, providing for a referendum of the kind spoken of at the 
Convention as a "mass" or "national" referendum — a referendum, 
that is to say, at which a simple majority of all the electors voting 
should decide. The discussion began by a general debate on the 
whole question. (Conv. Deb., Syd., pp. 541-79.) Some of the mem- 
bers had thought from the outset that some provision would be 
necessary to prevent serious conflicts between the Houses. Others, 
who thought conflicts would be infrequent, nevertheless agreed that 
some provision in the nature of a " safety-valve " would be desirable ; 
and some who had previously opposed any such provision were now, 
upon more mature consideration, converts to this view. The devices 
which were chiefly discussed at the outset were the dissolution of both 
Houses, either consecutively or simultaneously, and the referendum, 
either national or dual. Of these, all except the national referendum 
preserved the veto power of a majority of States, and therefore failed 
to provide effectually against the conflict which was feared from the 
double basis of representation. They safeguarded State interests, 
but did not ensure finality. They Avould only be effectual in cases 
where the Senate's constituents either differed from their representa- 
tives, or were overborne by the moral weight of the national majority. 
This, of course, from the point of view of the small colonies, was a 
strong recommendation; but from the point of view of the large 
colonies it meant that these schemes failed in their chief function ; 
that, whenever State interests and national interests clashed, the dead- 
lock, so far from being cured, would be intensified by being transferred 
from the Parliaments to the people. On the other hand the national 
referendum, though absolutely final, ignored the individual States 
altogether, and was objected to by the small States as practically 
destroying the power of the Senate to protect their interests. 

Some compromise was needed which would partially, but not 
fully, recognize State individualities; and to effect this, Mr. Kingston 
and Mr. Reid suggested that the subjects of legislation which affected 
State interests might be defined, and the dual referendum applied to 
them, whilst the national referendum should be applied in all other 
cases. It was soon seen, however, that no definition of this kind could 
possibly be framed, as almost every conceivable subject of legislation 
could be dealt with in a way which might seriously prejudice State 
interests. Some other principle of compromise had to be looked for. 

The Tasmanian suggestion — which, in case of continued dead- 
lock, enabled a four-sevenths majority of the House of I^epresenta- 
tives to override a four-sevenths majority of the Senate — was not 
much discussed ; but the somewhat similar device of a joint sitting of 
both Houses, which had previously been suggested in a tentative 
way by Mr. O'Connor, Mr. Reid and others, was now revived as a 
possible solution of the difficulty. It was not favourably received by 
Sir George Turner and Mr. Isaacs, who had an affection for the refer- 
endum — even the dual referendum, if no other were attainable. In 
fact — as is the way with compromises — it aroused no enthusiastic 



THE FEDERAL MOVEMENT IX AUSTRALIA. 191 

support anywhere ; but both sides looked upon it as a possible last 
resort if thev could get no better terms. The dissolution and the 
referendum continued to occupy the most prominent place in the 
debate ; which turned a good deal on the restrictions and safeguards 
which ought to be placed on both these devices to prevent their abuse. 
The objections raised to the consecutive dissolution, first of the House 
of Representatives and then of the Senate, were : first, that it would 
enable the Senate, without immediate risk to itself, to penalize the 
other House ; next, that it would mean that the two sides of the 
question would be put to the people at different times. The objection 
raised to the simultaneous dissolution of both Houses in the first 
instance was that it would enable the Ministry constantly and syste- 
matically to bring threats and pressure to bear on the Senate. And 
the objection raised to any dissolution of the Senate at all was that 
it would destroy the continuity which was effected by the principle of 
rotation — an objection largely met by the reply that deadlocks would 
undoubtedly be rare, and that resort to the deadlock clause would be 
"the medicine, not the dailv food," of the Constitution. The arsru- 
ment against the referendum was that it would weaken Ministerial 
and Parliamentary responsibility ; and accordingly many of those 
who objected strongly to its use as a first step were inclined to view 
it with less disfavour if it were preceded by the responsible step of a 
dissolution. The general discussion ended with a test vote on the 
first word of the proposed clause, which resulted in a decision, by 30 
votes to 15, in favour of a deadlock clause of some kind. Then came 
the question of the choice of methods. 

The first amendment, moved by Mr. Symon, was to the effect 
that if the Senate should disagree with any Bill passed by the House 
of Representatives, and if " on that account " the House of Repre- 
sentatives were dissolved, and if the deadlock still continued, the 
Grovernor-General might dissolve both Houses. It was at once com- 
plained that this not only required the House of Representatives to be 
penalized first, but also involved its being dissolved twice to the 
Senate^s once, and Mr. Symon accordingly consented to deprive the 
first dissolution of the House of Representatives of its penal char- 
acter by omitting the words '^ on that account," and to allow the 
Senate alone to be dissolved in the second instance. This proposition 
for a consecutive dissolution was strongly opposed by the representa- 
tives of New South AVales and Victoria, but was carried, after dis- 
cussion, by 27 votes to 22 — the division practically representing the 
three small colonies against the two large ones. To most of the 
representatives of the latter the vote was very unpalatable ; but it 
had to be accepted for the time being. 

Mr. Lyne then moved to add to Mr. Symon's amendment a pro- 
vision that if, after the consecutive dissolution, the deadlock still 
continued, the measure in question should be referred to a national 
referendum. But Sir George Turner, though he had been prepared 
to allow the referendum to follow a simultaneous dissolution, would 
not postpone it till after the consecutive dissolution ; and he accord- 
ingly moved an amendment on Mr. Lyne's proposition, so as to provide 
that instead of a dissolution, there might be a referendum (either 



192 HISTORICAL INTRODUCTION. 

dual or national) in tlie first instance. Mr. Wise, in turn, objected to 
a referendum without a previous dissolution, and accordingly moved 
to amend Sir George Turner^s amendment by inserting a simultaneous 
dissolution before the referendum. The proceedings were getting 
rather tangled, and to simplify matters the discussion was postponed, 
with leave to the Committee to reconsider and rescind the unsatisfac- 
tory vote already taken, and to begin afresh. 

The Committee, however, did not take advantage of this leave, 
but proceeded to discuss the series of amendments thus proposed. A 
Avhole day's debate followed before anj' decision was come to. A vote 
then taken, without division, on the first word of Mr. Lyne's amend- 
ment, decided that whatever new machinery was added should be 
made alternative to, and not consequent upon, Mr. Symon's consecu- 
tive dissolution. The result was that Mr. Symon's provision led up to 
nothing further, but stood by itself as one mode of securing agree- 
ment; whilst the Convention, not satisfied with that mode, proceeded 
to work out an alternative one. 

Mr. Lyne's amendment was now out of the way, and the questions 
before the Convention were Sir George Turner's proposition for a 
referendum, and Mr. Wise's amendment for preceding this with a 
simultaneous dissolution. Mr. Wise's amendment was carried by 25 
votes to 22 — a decision that, if there were to be a referendum at all, 
it should only be after a double dissolution. It soon became evident, 
moreover, that though the friends of some kind of referendum were in 
a majority, they were hopelessly split when the choice had to be made 
between the national and the dual referendum. As a result, the 
national referendum was defeated by 36 votes to 18 — the smaller 
colonies voting almost solid with the majority — and the dual referen- 
dum was next defeated by 27 votes to 18. 

Mr. Carruthers then came to the rescue with a proposition that 
Mr. Wise's double dissolution should be followed up by a joint sitting 
of both Houses, at which a three-fifths majority should be able to 
carry the measure. Though no one waxed enthusiastic over the joint 
sitting for its own sake, it was supported as being on the whole the 
best compromise that the Convention would agree to. It was, how- 
ever, strongly opposed by Sir George Turner and Mr. Isaacs on the 
one hand, and some of the friends of a strong Senate on the other. 
Mr. Kingston moved an amendment to substitute, in place of the joint 
sitting, a national referendum '' in the case of national questions," and 
a dual referendum "when State interests are involved;" but the 
impossibility of defining State interests was apparent, and the amend- 
ment was negatived by 30 to 11. The "three-fifths" majority at the 
joint sitting caused some debate. Mr. Howe, of South Australia, 
wanted to increase it to " two-thirds ; " Mr. Higgins, of Victoria, to 
diminish it to a bare majority. A proposition to omit the words 
"three-fifths" was defeated by 28 votes to 13 — Mr. Reid and others, 
who preferred a bare majority, not caring to risk the loss of every- 
thing by insisting. Mr. Carruthers' amendment was then carried by 
29 votes to 12. 

The result of these votes was that Sir George Turner's original 
proposition for a referendum was overlaid by the Wise-Carruthers 



THE FEDERAL MOVEMENT IN AUSTRALIA. 193 

amendment, providing for a simultaneous dissolution of both Houses, 
followed, if necessary, by a joint sitting. The question that this 
composite proposition stand part of the clause was carried in the 
affirmative by 23 votes to 13. A further amendment by Mr. 
Carruthers, to allow a bare majority at the joint sitting, if defeated, to 
appeal to a national referendum, was rejected; and the clause was 
then agreed to. The Sydney session thus resulted in two deadlock 
schemes : Mr. Syraon's consecutive dissolution, standing by itself and 
leading to nothing further ; and the Wise-Carruthers scheme of a 
double dissolution followed by a joint sitting. The latter scheme 
represented the real decision of the Convention, and it was tacitly 
understood that Mr. Symon's consecutive dissolution was supei^seded, 
and would be subsequently rescinded. 

The necessity for the departure of the Victorian delegates brought 
the proceedings of the Sydney session to a close before more than half 
of the clauses of the Constitution had been considered; and on 24th 
September the Convention adjourned, to meet for its final session at 
Melbourne on 20th January, 1898. 

Queensland and New South Wales. — It was hoped that this 
adjournment might enable Queensland, even at the eleventh hour, to 
take part in the proceedings of the Convention ; but the hope was 
again disappointed. A third Enabling Bill was indeed introduced in 
that colony in November, for the direct election — at last — of Queensland 
representatives by the whole colony as one constituency. This Bill 
was again wrecked by the provincial differences of the three great 
divisions of the colony. Mr. Curtis moved the withdrawal of the 
Bill with a view to having the colony divided into three constituencies. 
He succeeded in his object so far as the withdrawal of the Bill was 
concerned ; but no further Bill was introduced. Federalists were still 
too divided by provincial differences to make headway against 
opposition. 

In New South Wales, the interval between the Sydney and 
Melbourne sessions was marked by a determined effort by the opponents 
of the Convention scheme to prevent its ultimate adoption by the 
people. The Parliament of New South Wales contained many mem- 
bers who, if not exactly anti-federal, were at least strongly opposed 
to Federation on the lines which commended themselves not, only to 
the Convention, but to most of the zealous advocates of Federation. 
They had allowed the Enabling Bill to pass without much protest, 
little dreaming of the strength of public sentiment by which the 
movement so started would be supported and carried to a conclusion ; 
and they now rallied for a last Parliamentary stand. In June, a Bill 
had been introduced in the Assembly by Mr. R. H. Levien, a private 
member, to amend the Enabling Act by requiring an affirmative vote, 
at the federal referendum, of an absolute majority of all the electors 
on the roll. As the roll at that time numbered about 278,000 
electors, this meant an affirmative vote of some 139,000 — an impossible 
number to expect. The Bill reached its second reading on 12th 
October, when it was found that though few members were willing to 
go so far as to require an absolute majority, many would vote for a 
substantial increase in the minimum of 50,000 imposed by the 



194 HISTORICAL INTRODUCTION. 

Enabling Act. Any amendmeiit of the Enabling Act at this stage 
Avas denounced by the most prominent federalists in the House as a 
breach of faith with the other colonies ; but the second reading was 
carried by 47 votes to 27, and in Committee an amendment was carried 
requiring a minimum affirmative vote of 80,000. In that form the 
Bill was passed and sent to the Council, where it was intro- 
duced by Sir Julian Salomons. It met with determined opposition 
from Mr. Barton, Mr. O'Connor, and other prominent federalists, who 
however found themselves in a minority. The second reading was 
carried by 21 to 17, and in the course of an all-night sitting, notwith- 
standing gallant resistance, it was forced through Committee with the 
help of a plentiful — and in that Chamber, unprecedented — use of the 
closure. It became law on 12th December. 



(13) THE MELBOURNE SESSION OF THE CONVENTION, 1898. 



The Melbourne session, extending from 20th January to 17th 
March, 1898, was the longest and most important of all; and the 
necessity of coming to a final decision on all points invested its 
deliberations with special weight. The whole Bill received thorough 
reconsideration by the Convention, and thorough revision by the 
Drafting Committee. The passage through Committee of the Whole, 
interrupted in Sydney, was completed — ending with the finance and 
trade clauses, on which the Finance Committee had meanwhile 
reported. This process occupied the Convention until 3rd March, 
after which the Bill was four times recommitted for the consideration 
of certain clauses, and for the insertion of drafting amendments, before 
it was finally adopted by the Convention. The debates which stand 
out from the others as being of pre-eminent importance were those 
relating to rivers, finance, and railway rates. 

Rivers. — The river question raised the first long debate, whicl 
occupied nearly a fortnight of the time of the Convention. (Convi 
Deb., Melb., pp. 31-150, 376-642, 1947-90.) It began upon the 
suggestion of the Legislative Council of South Australia, to extend tc 
the " Darling, Murrumbidgee, and Lachlan " the sub-clause empowers 
ing the Federal Parliament to regulate " the navigation of the rivei 
Murray and the use of the waters thereof." The South Australiai 
claim, at first, involved federal control not only of navigation, but of 
irrigation and water conservation as well. It was argued that the 
great rivers belonged, not to one colony, but to all ; that they wer€ 
essentially national in character, and that the use of their waters, foil 
all purposes, could only be effectually dealt with by the federal 
authority. As regards navigation. South Australia undoubtedly hac' 
the best of the argument, and no serious attempt was made in Mel- 
bourne to confine federal control of navigation to boundary rivers. It 
was also admitted that the navigation power ought not to be confinec' 
to the rivers which were '' navigable ^^ in the sense laid down bj 
English decisions, as being subject to the ebb and flow of the tide, but] 
ought to extend, as defined by cases in the United States, to rivera 



THE FEDERAL MOVEMENT IN AUSTRALIA. 195 

whicli were in fact, permanently or intermittently, navigable for 
purposes of trade and commerce. But it was pointed out that irriga- 
tion and conservation were not subjects handed ov^er to the Common- " 
■wealth, and therefore that the " use of the wafers " for these purposes 
was a matter in which the States, which were responsible for the 
settlement and cultivation of their lands^ were primarily interested. 
This the South Australian representatives were soon obliged to 
concede, though they maintained that there were, or ought to be, 
riparian rights between States as between individuals, and that these 
rights ought to be defined by federal law. The debate proceeded 
mainly, however, on the recognized assumption that navigation — at 
least inter-State navigation — was a federal power, incident to 
the control of trade and commerce, whilst irrigation and con- 
servation were State powers incident to the control and 
management of the land. The difficulty remained, that the 
two powers might_possibly__conflict. Irrigation and conservation 
works in the States, if uncontrolled by the Commonwealth, might 
destroy the navigability of the rivers ; whilst navigation regulations 
of the Commonwealth, and more especially works for maintaining or 
improving the navigability of the rivers, might seriously interfere 
with irrigation and conservation. South Australia adjured New South 
"Wales to "trust the Federal Parliament;" New South Wales replied 
that she was prepared to trust the Federal Parliament in federal 
matterSj but that provincial rights ought to be beyond the reach 
of the Federal Parliament. It was argued very strongly that both 
sides were fighting a shadow, and that the danger of conflict was 
imaginary; that the two powers, so far from being antagonistic, would 
probably mutually benefit each other. Neither party, however, could 
be wholly satisfied as to this ; and the question was how far either 
power, in case of conflict, ought to be paramount. Amendments 
inimmerable^ were suggested, with a view to giving the Federal 
Parliament power to deal with the " maintenance of the navigability," 
or " the maintenance and improvement of the navigability " of the 
rivers ; whilst the New South Wales representatives contended that 
the clause ought to be restricted to the "control of navigation." 
^'Navigability," they objected, was such an uncertam and intermittent 
condition in the Darling that it was impossible to define what its 
*' maintenance " meant ; and it would be equally impossible to decide 
whether a particular irrigation work interfered with " navigability " 
or not. Moreover, power to maintain — and still more to improve — 
navigability, must, in order to be effective, deal with tributaries, and 
control the use of the water. Irrigation and conservation, they 
contended, were needed for production, and were infinitely more 
important than navigation, which was only needed for carriage. 
Accordingly, they objected to any provision which made navigation 
paramount, and cultivation subservient. To meet these objections, 
various limitations were suggested by way of preventing interference 
with a " reasonable use " of the waters for irrigation, or of requiring 
" a just regard to the necessities of water conservation and irrigation." 
None of these suggestions, however, satisfied the New South Wales 
representatives, who complained that they were being asked, in the 



196 HISTORICAL INTRODUCTION. 

name of Federation, to give up their undoubted rights with regard to 
provincial matters. No solution seemed ready, and Mr. Barton 
secured the postponement of the clause in order that the delegations 
most directly concerned might thresh the matter ouji in friendly 
conference. 

The friendly conference, however^ was unsuccessful, and the 
debate re-commenced. In the interval Mr. Carruthers, the New 
South Wales Minister for Lands, had procured and hung in the 
vestibule a large map showing the watershed of the Murray system; 
and this helped the representatives of Tasmania and Western Aus- 
tralia, who were in the position of disinterested umpires, to see that 
the objections of New South Wales were not unfounded. The Con- 
vention began to hark back to the position that, after all, the " trade 
and commerce " power, together with the power to regulate "naviga- 
tion and shipping,^^ gave all the control of navigation that was 
necessary, and that the best solution would be to follow the American 
example and attempt no detailed definition. A number of amendments, 
on the lines previously foreshadowed, were proposed and negatived, 
and eventually the whole sub-clause was struck out. Attempts were 
made to substitute various other provisions in its place ; but these 
were all rejected in turn, and the " navigation " power was left unde- 
fined and unfettered, without any reference to rivers. 

New South Wales, however, was not yet satisfied. The federal 
control of rivers was now limited to navigation ; but the navigation 
power, being a federal power, would be absolutely paramount, in case 
of conflict, over the rights of the States to use the water for any other 
purpose. Mr. Eeid and Mr. Carruthers wanted to secure the rights 
of irrigation and conservation, which they regarded as of paramount 
importance, against any possible interference by the Federal Par- 
liament. Accordingly, after the second re-committal of the Bill, 
Mr. Carruthers moved to add to the " navigation and shipping " 
sub-clause a proviso that the use of the rivers for navigation should 
be subordinate to the conservation of waters within any State to 
meet the requirements of its people. He argued that without some 
such safeguard no one could safely invest money in conservation 
works without the express sanction of the Federal Parliament. The 
South Australians, having failed to secure their own amendments, 
fougM for the Bill as it stood, and claimed that irrigation must not be 
made paramount unless some just basis of distribution between 
riparian States were recognized. Finally Mr. Carruthers withdrew 
his amendment in favour of one by Mr. Reid, to the effect that the 
navigation power *' shall not abridge the rights of a State or its 
citizens to the use of the waters of rivers for conservation and irriga- 
tion." This, it was claimed, merely protected the existing rights of 
New South Wales, leaving it to the Court to say what those rights 
'were. The South Australian argument, however, was that, whatever 
the present legal rights of a colony might be, they should not be para- 
mount when they conflicted with the reasonable use of the powers of 
the Commonwealth. Several previous amendments had offered to 
concede to the States the "reasonable use" of the waters, and now 
Sir John Downer proposed to insert " reasonable " before " use " in 



THE FEDERAL MOVEMENT IN AUSTRALIA. 197 

Mr, Reid's amendment. Mr, Reid feared that the indefinite word 
'' reasonable " would destroy the effect of the provision for the pre- 
servation of rights ; but the Convention was against him, and the 
sub-clause was carried with Sir John Downer's amendment. Later, it 
was re-modelled by the Drafting Committee into a separate clause 
explanatory of the " trade and commerce " power. 

The Financial Clauses. — The Finance Committee appointed in 
Sydney had not, during the Sydney session, found much time for 
deliberation ; but during the early part of the Melbourne session they 
got to work, and framed a series of resolutions which, with the help 
of the Drafting Committee, were shaped into clauses. On 10th Feb- 
ruary, when the first consideration of the whole Bill, except Chap. lY., 
had been completed, the Finance Committee brought up their report. 
They proposed a complete reconstruction of the financial scheme of 
the Bill. They recommended that the Adelaide " guarantees " of a 
limited expenditure and of a minimum aggregate return of surplus 
should be omitted. They submitted a new clause to provide against 
a loss of revenue which it was feared might result during the first year 
of the tariff if merchants "loaded up " dutiable goods in New South 
Wales in anticipation of the tariff, in the hope of making them free of 
the Commonwealth without paying duty. The new clause pro\'ided 
that such goods, on transportation into another State within a certain 
time after the uniform tariff, should pay the difference between the 
duty chargeable on importation under the uniform tariff and the duty 
they had already paid. 

As regards the period before the uniform tariff, no substantial 
change was made ; but after the uniform tariff it was proposed to 
abolish the Adelaide sliding-scale, and revert to the despised system 
of book-keeping " for five years, and thereafter until the Parliament 
otherwise provides." In other words, they harked back, practically, 
to the plan of 1891, ensuring each State a return on the basis of its 
contributions for five years, and leaving the ultimate mode of distri- 
bution to be determined by the Parliament, after five years' experience 
of federal conditions. 

To meet the abnormal position of Western Australia, a clause 
was suggested to provide that in the event of a falling off in the pro- 
portional amount collected in that colony, as compared with the rest 
of the Commonwealth, the deficiency should be made good by the 
Commonwealth. 

On this report there was a general debate of two days' duration. 
(Conv. Deb., Melb., pp. 774-895). On the whole, the scheme was 
received with general, though cautious, approval, as the best that 
could be done with a difficult problem. The abolition of *' guarantees," 
however, was strongly objected to by Sir George Turner and Mr. 
Isaacs for Victoria, and by Sir Edward Braddon and others for Tas- 
mania. Mr. Holder, on the other hand, argued that an express 
guarantee was unnecessary, because " the necessities of four out of 
five States " were a sufficient guarantee that the Parliament would 
raise its revenue and limit its expenditure to meet those necessities. 
Some of the Tasmanians also thought that their colony ought to 
receive special terms like those given to Western Australia. 



198 HISTORICAL INTRODUCTION. 

The clauses were then dealt with in detail, and the recommenda- 
tions of the Finance Committee were substantially accepted, except in 
respect to the West Austi-alian clause. It was pointed out that any 
loss of revenue which that colony might suffer would be a purely 
Treasury loss, owing to a remission of taxation to the West Australian 
tax-payers ; and it was argued that this loss ought to be made up by 
the tax-payers of Western Australia, not by the tax-payers of the 
other colonies. Western Australia, however, was not yet in a position 
to raise much revenue otherwise than through the customs ; so it was 
finally agreed to allow her, for five years, to impose gradually 
diminishing duties on intercolonial imports. This would, of course, 
postpone for a while the full benefits of intercolonial freetrade, and 
was not very welcome to South Australia, the next-door neighbour of 
Western Australia; but the point was conceded in consideration of 
the abnormal conditions temporarily existing in the latter colony. 

The Adelaide " guarantees '^ having been struck out, several 
alternative kinds of guarantee were submitted, but without success; 
and when the Bill was reported a first time to the Convention it 
contained no express guarantee whatever as to the return of surplus. 
This position, which was due to the strenuous objections of the New 
South Wales delegates, was not accepted as final by the other 
colonies ; and after the third recommittal Sir Edward Braddon, after 
consultation with others of the same mind, brought up the first draft of 
the famous Braddon clause, providing that out of the net customs and 
excise revenue not more than one-twentieth should be spent by the 
Commonwealth in the exercise of its original powers, not more than 
four-twentieths should be spent upon transferred sei'vices, and the 
remaining three-fourths should be distributed among the States. The 
proposal was made in the small hours of the morning, towards the 
close of the sittings ; it had been in print for some days, the Conven- 
tion had already discussed the whole question fully, and it was carried, 
with hardly any debate, by 21 votes to 18 — the Victorians and 
Tasmanians voting solid with the '^Ayes," and all the representatives 
of New South Wales, except Mr. Lyne, with the "Noes." 

Next day it was reconsidered. Mr. Barton made an effort to 
limit it to five years, in which he was backed up by Mr. Reid, who 
reiterated his objections to any guarantee at all, but admitted that, if 
there must be a guarantee, this was the least objectionable form of it 
that he had seen. Mr. Holder put the argument for the clause very 
clearly. The Federal Treasurer would only need, for federal purposes, 
a revenue of £1,500,000; but to meet the needs of the States, he 
ought to raise at least £6,000,000. He still thought that the best 
guarantee was the necessities of the States; that this clause only 
imposed a statutory obligation to do what in any case the Parliament 
would be under a political obligation to do. Still, he pointed out the 
difficulty of satisfying the electors — upon whose acceptance the Con- 
stitution depended — without plain words on the face of the Constitu- 
tion ; and he supported the clause without limitation. Mr. Barton's 
amendment was negatived; and the clause passed with an amendment 
providing that, when any part of the public debts was taken over, 
revenue returnable to the States might be devoted to the payment of 



THE FEDERAL MOVEMENT IN^ AUSTRALIA. 199 

interest . The clause was discussed yet once again, when Sir Edward 
Braddon consented to simplify it by omitting the distinction between 
different kinds of expenditure, and allowing the Commonwealth to 
spend one-fourth of the net receipts. 

The financial clauses, as finally passed, substantially differed from 
those of 1891 in one respect only — the addition of the "guarantee^' 
contained in the Braddon clause. The question of guarantees to the 
States against the dislocation of their finances had troubled the Con- 
vention from the very first ; the problem being to satisfy Victoria, 
South Australia, Western Australia, and Tasmania on this point with- 
out arousing the fears of New South Wales that a high tariff would 
be required. In the latter part of their task — as subsequent events in 
New South Wales proved — the Convention did not altogether succeed; 
for it was upon the Braddon clause that the opponents of the Bill in 
l^ew South Wales made the fiercest and most effective attack. 

Railway Rates. — The question of regulating the war of railway 
tariffs caused a series of long and critical debates, owing to the diffi- 
culty, in the first place, of finding any satisfactory definition of fair or 
unfair competition, and the difficulty, in the second place, of securing 
harmony between the apparently conflicting interests of the rival trade 
centres, Sydney and Melbourne. 

To begin with, Mr. Barton proposed to substitute, for the prefer- 
ence clause agreed to in Adelaide, a clause forbidding both the 
Commonwealth and the States to make any law or regulation of 
commerce or revenue which should give any preference to one State 
over another. This was at once objected to as going too far. 
That the Commonwealth should give no preferences was admitted ; 
that a State should not be permitted to " derogate from free- 
trade " by trade barriers of any kind was also admitted ; 
but that a State should be forbidden to attract trade to itself 
— to compete for trade by increasing the facilities for it — was 
too sweeping. It was strongly urged that the aim of Federation was 
to remove obstructions to trade, not to paralyze competition. Mr. 
Higgins denied this, and argued that differential rates which attracted 
trade, though they did not interfere with freedom of trade, interfered 
with equality of trade, and were therefore unfederal. He proposed to 
add to the existing clause a prohibition against rates made " with a 
view of attracting trade to ports of one State against ports of another 
State." Mr. Reid, however, replied that low rates were used for 
purposes of developing territory, as well as for attracting trade, and it 
would be impossible to frame words which would allow the one, and 
forbid the other. It would be disastrous to federalize the control of 
railway rates unless the financial responsibility of management were 
also federalized; and whilst he was prepared to forbid unduly high 
rates, he favoured an express provision that no rates should be invalid 
by reason of being unduly low. Such rates cut no throats ; they 
benefited the producers ; at the cost of the State, no doubt — but that 
was the State's concern. These widely differing views were developed 
by several speakers, but without any satisfactory compromise being 
^'^^^^ssted ; and the opinion seemed to be gaining ground that there 
was really no middle course between the complete federation of the 
railways on the one hand, or unrestricted competition on the other. 



200 HISTORICAL INTRODUCTION. 

yL'^ " Mr. Higgins' amendment was negatived by 24 to 18 ; the clause 
m the Bill was struck out Avithout division ; and then Mr. Barton 
proposed his new clause in a modified form, limited to the prohibition 
of preferences by the Commonwealth. This would have left the 
States free to charge any rates which did not come within the category 
of " derogating from freedom of trade." An amendment by Sir John 
Downer, to extend the prohibition to preferences by the States, was 
negatived; and then Mr. Higgins moved his amendment against rates 
made to "attract trade" — which this time was carried by 18 votes 
to 15. s^^"" 

This decision somewhat alarmed New South Wales, and a wrangle 
followed as to what its precise eifect would be. It seemed to aim at 
fixing points of equidistance between Sydney and Melbourne as the 
" watershed " of traffic, and preventing " long-haul " rates between 
Sydney and Eiverina. The New South Wales contention was that 
this would make waste iron of the New South Wales lines in that 
^ direction, and Mr. Eeid promptly moved a proviso to prevent any 
^ interference with the power of a State to fix its railway rates so as to 
"secure payment of working expenses and interest upon the cost of 
construction." The Convention was now in something of a tangle. 
Mr. Eeid's amendment was negatived by 22 to 20 ; but it was decided 
to postpone the clause until after the consideration of an alternative 
suggestion by Sir George Turner. 

Sir George Turner's proposition was that Parliament might make 
laws to carry out the trade and commerce power upon railways, " and 
particularly to forbid such preferences or discriminations as it may deem 
to be undue and unreasonable, or to be unjust to any State." (Conv. 
Deb., Melb., p. 1372.) The first part of this — the purport of which is 
now embodied in sec. 98 of the Constitution — was merely declaratory 
of the application of the trade and commerce power to State railways ; 
the second part was a particular interpretation of the nature of the 
power, and was meant to enable the Parliament to deal with all unfair 
rates, whether too high or too low. Its phraseology was based on the 
• English Eailway and Canal Traffic Acts and the American Inter-State 
Commerce Act. The objections raised on the part of New South 
Wales were : first, that it purported to control internal commerce, as 
well as inter-State commerce ; next, that it assigned to the Parliament 
a power that was properly judicial. On the latter point there was an 
animated debate. Sir Geoi-ge Turner and Mr. Isaacs argued that the 
question was political rather than judicial, and was properly entrusted 
to the Parliament ; whilst Mr. Eeid insisted that the Parliament 
would be an interested tribunal and therefore a " tainted tribunal." 
However, the clause — with the omission of the word "particularly" 
— was carried by 25 votes to 16. 

Mr. Barton's postponed clause was now re-considered, and Mr. 
Higgins' amendment, being superseded by Sir George Turner's clause, 
was struck out. The Turner clause was taken very seriously by Mr. 
Barton, Mr. Eeid, Mr. O'Connor, and most of the New South Wales 
representatives, who complained that it meant that the railway rates 
of New South Wales in the competitive area were to be fixed to suit 
the interests of the other colonies. To counteract it Mr. O'Connor 



THE FEDERAL MOVEMENT IN AUSTRALIA. 201 

moved an amendment providing that no rate should be deemed 
unlawful on the ground that it was undulj low. Afterwards, to make 
his purpose clear, he added the Avords " if such rate is imposed for 
the development of traffic between places within the limits of the 
State." The debate became very heated ; Victoria was charged with 
" aggression " and " spoliation," whilst New South Wales was accused 
of wanting low rates, not for the sake of developing her territory or 
benefiting her producers, but in order to secure a monopoly for her 
own railways. The Turner clause had been inserted because it was 
feared that the trade and commerce clause tied Victoria's hands, and 
left New South Wales free. Mr. O'Connor's amendment was moved 
because it was feared that the Turner clause left New South Wales 
defenceless ; and Sir George Turner complained that the amendment 
undid the whole effect of his clause, and tied Victoria's hands aofain. 
At this stage Mr. Grant came to the rescue with an amendment — now 
practically embodied in sec. 104 of the Constitution — to the effect 
that there should be no interference with " the imposition of such 
railway rates by any State as may be necessary for the development 
of its territory, if such rates apply equally to goods fi-om other States.'* 
This would empower the Parliament to prevent rates which dis- 
criminated between the goods of different States, unduly high rates 
which blocked inter-State traffic, and unduly low rates whose 
purpose was not development, but competition. This suggestion was 
favourably received by New South Wales ; but Sir George Turner 
and Mr. Isaacs objected that it would throw an impossible task upon 
the High Court. They contended that the proper tribunal to deter- 
mine whether a rate was " necessary for development " was the 
Parliament; and the Victorian Premier moved the insertion of the 
words " in the opinion of the Parliament." It seemed that the whole 
dispute was to be re-opened ; but at last something approaching 
harmony was restored by the suggestion to leave the decision to the 
Inter-State Commission — a body which would be judicial in attitude, 
and at the same time better able than the High Court to investigate 
and determine the questions which would arise. 

The whole subject was now — after three days' debate — ripe for 
settlement ; and to simplify the process the various amendments were 
withdrawn, to be proposed again in the form of new clauses. Mr. 
Barton's clause, forbidding the Commonwealth to make preferences, 
was at once carried. Mr. Grant then proposed his clause safeguarding 
rates which were " necessary for development." Sir Geoi'ge Turner 
announced himself as unable to accept this unless Parliament were 
made the judge of the necessity, and he moved an amendment to that 
effect ; but this was rejected in favour of an amendment by Mr. 
Holder to make the Inter-State Commission the judge of this question. 
In that form the clause was carried by 22 votes to 21 — all the Vic- 
torian representatives, except Mr. Higgins, voting against it, and all 
the New South Wales representatives voting for it. This division was 
taken to involve, consequentially, the substitution of the Inter-State 
Commission for the Parliament in the Turner clause. 

Mr. Reid then proposed a clause (now substantially embodied in 
section 102 of the Constitution) requiring that '* due consideration 



202 HISTORICAL INTRODUCTION. 

shall be given to the financial responsibility incurred in connection 
with the construction and working expenses of State railways." This 
also was agreed to^ and the settlement was complete. 

The clauses were afterwards recast by the Drafting Committee, 
and on the second recommittal of the Bill Sir George Turner and Mr. 
Isaacs again took a division on the proposal that the Parliament, 
instead of the Inter-State Commission, should be the judge of the 
fairness of a rate ; but the Convention was against them by 22 votes 
to 15. 

These provisions gave important and responsible duties to the 
Inter-State Commission, and led to some changes in its constitution. 
Instead of merely empowering the Parliament to constitute an Inter- 
State Commission, the Convention decided to provide that "there 
shall be an Inter-State Commission," and to restore the clauses giving 
the members of the Commission a seven years' tenure, subject only to 
removal by both Houses of Parliament in the way prescribed for 
Justices of the Federal Courts. The functions of the Commission were 
defined as being " the execution and maintenance within the Common- 
wealth of the provisions of this Constitution relating to trade and 
commerce, and of all laws made thereunder." For this purpose, how- 
ever, it was only to have " such powers of adjudication and adminis- 
tration as the Parliament deems necessary." As it was thus contem- 
plated that the Commission should have judicial functions, it was 
deemed necessary — in order to preserve the unity of the judicial 
system — to allow an appeal from its decisions to the High Court, but 
" on questions of law only." 

The whole intention of the " railway rate " clauses was to secure 
the fullest measure of trade equality that was consistent with the 
management of the railways by the States, and with the responsibilities 
of the States in connection therewith. This was secured by means of 
a triple control by the Federal Parliament, the Inter-State Commission, 
and the High Court. Preferences and discriminations by a State — 
unlike preferences by the Commonwealth — are not directly prohibited 
by the Constitution ; but the Parliament is enabled, under its trade 
and commerce power, to make laws prohibiting, not all preferences 
and discriminations, but preferences and discriminations which are 
undue and unreasonable, or unjust to any State. This power, how- 
ever, is hedged about by restrictions intended to prevent its jfbuse for 
political purposes ; notwithstanding any Parliamentary prohibition, no 
rate can be prevented without the independent judgment of the Inter- 
State Commission that it is unfair ; nor even then can it be prevented 
— unless it applies unequally to the goods of different States — if the 
Commission deem it necessary for development. Any prohibition of 
preferential rates must, therefore, first be declared by the Parliament, 
and cases arising under any such prohibition must be independently 
adjudicated on by the Inter-State Commission ; whilst over both 
Parliament and Commission stands the Constitution, and — as the final 
arbiter and interpreter of the Constitution — the High Court. 

Deadlocks. — There was another two days' debate on the deadlock 
clause, and a number of amendments were moved which re-opened 
the whole question. The first paragraph of the clause, providing for 



THE FEDERAL MOVEMENT IN AUSTRALIA. 203 

a consecutive dissolution, was dealt with fii-st. Sir John Forrest, 
fearino' that the provision for dissolving the Senate would place that 
House at the mercy of the Executive, proposed to substitute, in place 
of the dissolution of the Senate, a joint sitting in the first instance. 
This was negatived by 28 to 15. Mr. Barton proposed to omit the 
first paragraph altogether, according to the understanding at Sydney ; 
but the friends of the " consecutive dissolution " were detennined to 
make another effort to carry their point, and the paragraph — for the 
present — was retained by a vote of 28 to 17, the minority being 
almost wholly composed of representatives of New South Wales and 
Victoria. 

The fight between the consecutive dissolution and the simul- 
taneous dissolution was brought to an issue by Mr. Symon's amend- 
ment to strike out the first part of the second paragraph (providing 
for a simultaneous dissolution) and so attach the joint sitting to the 
consecutive dissolution. For a time the situation looked serious. 
The last division indicated that the smaller States preferred the 
consecutive to the simultaneous dissolution, and there was a prospect 
that they would follow up their victory by carrying the amendment. 
Sir George Turner protested that if this were done the chances of 
carrying the Bill in Victoria would be ruined ; and Mr. Reid followed 
with a speech which, under a running fire of interjections, developed 
considerable warmth. At this stage Mr. Barton secured an adjourn- 
ment for dinner and calm reflection ; and on resuming the debate, it 
turned out that the danger was imaginary — the amendment being 
negatived by 28 votes to 12. 

The longest debate was on a proposal by Mr. Isaacs to substitute 
a referendum for the joint sitting. The national referendum was, of 
course, his ideal ; but he preferred the dual referendum to none at 
all, as it would secure the voice of the people — and the experience of 
Switzerland supported the view that the voice of the people was 
never likely to be contradicted by the voice of the States. A 
referendum, he contended, was the only satisfactory solution. Dis- 
solution of the Houses was admittedly insufficient ; and the joint 
sitting was objectionable because it allowed the principle of equal 
representation to invade the House of Representatives, introduced a 
unicameral body as final arbiter, and would, in practice, give the 
Senate a decisive veto. Mr. Wise replied with a powerful attack on 
the proposed application of the referendum, as being unsuited to the 
British Parliamentary system, and destructive of Responsible Govern- 
ment. Mr. Reid and Mr. Isaacs contended that these arguments 
only applied to a referendum, such as that in Switzerland, by way of 
a veto on the Parliament ; the question here was how to meet the case 
in which Parliamentary institutions broke down. Most of the Vic- 
torians, half of the South Australians, and Mr. Reid and Mr. 
Carruthers from New South Wales, supported the amendment ; but 
the Convention was not to be convinced, and it was defeated by 30 
votes to 15. 

An amendment by Mr. Higgins, to substitute a bare majority for 
three-fifths, was defeated by 27 to 10. The clause was elaborated in 
several respects — especially with a view to enabling the joint sitting 



204 HISTORICAL INTRODUCTION. 

to consider amendments actually made by either House, whilst making 
it clear that amendments suggested by the Senate could not be so 
considered, and that therefore the joint sitting gave the Senate no 
power of indirectly amending money bills. Finally, Mr. Symon 
agreed that the isolated provision for a consecutive dissolution was an 
excrescence, and ought to be struck out ; and this was done. Sub- 
stantially, therefore, the Sydney settlement of the deadlock question 
was adhered to. 

Other Changes. — During the Melbourne session numerous 
amendments of considerable constitutional importance were made. 
The legislative authority of the Commonwealth was — after several 
unsuccessful attempts — at last extended, on Mr. Howe's motion, to 
" invalid and old-age pensions ; " and power was also given to make 
laws for the acquisition of property for the public purposes of the 
Commonwealth. The provisions as to Privy Council appeals were 
considerably altered. To meet the wishes of an influential section of 
the mercantile community, who petitioned in favour of preserving the 
right of appeal, it was decided not to interfere with the existing right 
of appeal direct from the Supreme Courts of the States to the Privy 
Council, but to allow an alternative right of appeal to the High Court. 
Where, however, the appeal was made to the High Court, its decision 
was to be final, in the sense that there was no further appeal as a 
matter of right ; and in matters involving the interpretation of the 
Federal Constitution, or of a State Constitution, no appeal was 
allowed, even as a matter of grace, unless the public interests of some 
other part of the Queen^s dominions were concerned. With this 
exception, there might be an appeal from the High Court to the Privy 
Council by special leave of the Queen in Council ; but the Federal 
Parliament might limit the matters in which such leave could be 
asked. 

The suggestion of the Legislative Council of New South Wales, 
that the federal capital should be at Sydney, was met with a counter- 
suggestion by Sir Edward Braddon in favour of " some suitable place 
in Tasmania," whilst Sir George Turner and Mr. Symon kept up the 
joke by suggesting *' St. Kilda " and " Mt. Gambler " respectively. 
It was felt that the site of the capital ought to be left for the Aus- 
tralian Parliament to choose. The amendment was negatived without 
division, and an amendment by Mr. Lyne, to provide that the seat of 
Government should be in New South Wales, was withdrawn at the 
suggestion of his colleagues. On xthe first re-committal of the Bill, 
however, Mr. Lyne pressed his amendment to a division, in which he 
was defeated by 33 votes to 5 ; whereupon Mr. Peacock — to show 
that the vote was not an expression of opinion that the capital ought 
to be in Victoria — divided the Convention on the question that the 
capital should be in Victoria — which was defeated by 36 votes to 3. 
A proposition by Sir George Turner, that the capital should be 
" within federal territory," was then carried by 32 votes to 12. 

There was a widespread feeling that the Constitution ought to 
contain some recognition of the Deity. At Adelaide numerous 
petitions to this effect had been received from various religious bodies, 
and Mr. Glynn had proposed to insert in the preamble a declaration 



THE FEDERAL MOVEMENT IX AUSTRALIA. 205 

that the people " invoking Divine Providence " had agreed to form a 
Federal Commonwealth. A majority of the members thought, how- 
ever, that the insertion of such words might offend some sections of 
the people, and that the Convention ought to abstain from expressing, 
by any formula, the religious sentiments of the people. In deference 
to this feeling, Mr. Glynn had wished to withdraw the amendment; 
but this was objected to, and it was negatived by 17 votes to 11. 
Subsequently nine out of the ten Houses of Legislature had suggested 
the insertion of some words of recognition, and in Melbourne Mr. 
Glynn proposed to insert the words " humbly relying upon the blessing 
of Almighty God," which was carried without division. To prevent 
any implication arising from these words that the Commonwealth had 
an}^ power to impose religious observances, or require religious tests, 
Mr. Higgins afterwards proposed the clause which now stands as sec. 
116 of the Constitution. 

On Saturday, 12th March, after the Bill had been for the fourth 
time reported with amendments, the Convention adjourned to enable 
the Drafting Committee to revise the Bill. The Committee worked 
assiduously, thoroughly revising every clause ; and on Wednesday, 
IGth March, the Bill was recommitted a last time, and finally adopted 
by the Convention. 

Xext day the Convention held its last sitting. A motion by Mr. 
Barton, inviting the Premiers of all the colonies to supply copies of 
the Draft Constitution to the electors, afforded an opportunity for 
those members who were present to express their opinions of their 
work. Mr. Barton and Mr. McMillan for New South Wales, Mr. 
Deakin and Mr. Trenwith for Victoria, Sir Richard Baker, Mr. Holder 
and Mr. Glynn for South Australia, Sir Edward Braddon for Tasmania, 
all expressed themselves, with varying degrees of enthusiasm, as 
satisfied with the Constitution as a whole, and pledged themselves to 
its support. Mr. Reid had already left for home ; so had the West 
Australian representatives. Sir George Turner was ill; but his 
colleague, Mr. Isaacs, spoke for both, and announced that though they 
were not wholly satisfied, they hoped that after thorough consideration 
they would be able to recommend the Bill to Victoria. And in putting 
the motion, Mr. Kingston, from the Chair, declared his faith in 
memorable words : — 

" It seems to me that this is not the time when one should stand 
trembling on the brink of a distinct declaration as to future policy in 
connection with this great movement. I can but speak for myself 
alone ; but in regard to this Constitution, I say unhesitatingly that I 
accept it gladly. More, I welcome it as the most magnificent Consti- 
tution into which the chosen representatives of a free and enlightened 
people have ever breathed the life of popular sentiment and national 
hope. Mine will be no Laodicean advocacy ; but with such ability as 
I may possess, and with the fullest enthusiasm and warmth of which 
my nature may be capable — with my whole heart and strength — I 
pledge myself to recommend the adoption of this Constitution, daring 
any danger and delighting in any sacrifice which may be necessitated 
by unswerving devotion to the interests of the Commonwealth of 
Australia." 



206 HISTORICAL INTRODUCTION. 

After some complimentary resolutions, the proceedings terminated 
with cheers for the Queen and for Australia, and the Australasian! 
National Convention of 1897-8 came to a close. 



(14) THE REFERENDUM OF 1898. 



In accordance with the requirements of the Enabling Acts, the 
Draft Constitution was forwarded to the Governors of the several 
colonies by the President of the Convention and by the representatives. 
From the rising of the Convention an interval of eleven weeks elapsed 
before the popular vote was taken in four colonies — an event which in 
New South Wales, Victoria and Tasmania, was fixed for Friday, 3rd 
June, and in South Australia for 4th June. Western Australia alone 
took no action, but awaited the result of the vote in the other colonies. 
In the colonies in which the vote was to be taken, copies of the Draft 
Constitution were freely distributed to the electors. In New South 
Wales and Tasmania, the Constitution was accompanied by an official 
explanation prepared by Mr. R. R. Garran ; in Victoria the Melbourne 
Argus published an unofficial explanation by Dr. Quick ; and in South 
Australia a summary of its provisions was circulated by the Govern- 
ment. The campaign for and against the Constitution began promptly, 
and was vigorously conducted by the newspaper press, the federal 
representatives of each colony, and prominent politicians of all parties. 

New South Wales. — In New South Wales alone was the opposi- 
tion really formidable. During the last days of the Convention, 
whilst the leading champions of the Bill were still at their task in 
Melbourne, a wave of opposition had swept through Sydney. The 
first opponent in the field was the Sydney Daily Telegraph, which 
cast its whole influence against the Bill, Mr. J. H. Want resigned 
his position in the Ministry to fight the Bill with a free hand ; whilst 
many members of Parliament, including the whole of the labour 
party, threw their influence on the same side, and a strong " Anti- 
Convention Bill League " was formed with head quarters in Sydney. 
The objections which were made to the Bill may be classed under 
three heads — political, financial, and provincial. Criticism of the 
political aspects of the Constitution was concentrated chiefly on the 
principle of equal representation in the Senate, and the powers 
wielded by the Senate — provisions which, it was argued, would stifle 
the will of the majority, and enable the small States to rule the large. 
In a less degree, the provision for amending the Constitution was 
attacked, as making amendment practically impossible, and imposing 
a " cast-iron " Constitution for all time. A further objection, which 
consolidated the greater part of the Parliamentary labour party 
against the Bill, was the rejection of the Referendum — their favourite 
political institution — as a means for settling deadlocks. The financial 
objections were that the Bill necessitated the raising of an enormous 
customs revenue, and consequently an immense increase of taxation 
in New South Wales ; that under the federal tariif New South Wales 
would contribute an undue proportion of the revenue, and that after 



THE FEDERAL MOVEMENT TX AUSTRALIA. 207 

the expiration of the book-keeping period thei*e was every proba- 
bility that her share of the surplus would be " scrambled for " by the 
other colonies, to meet their pressing needs. The Braddon clause, 
under the alliterative nickname of the " Braddon Blot," was especially 
denounced ; and apart from the strong case that could be made out 
against it on its merits, it was made the subject of ingenious mis- 
interpretation — such, for instance, as the constantly reiterated 
assertion that it required the raising of " four times as mucli taxation 
as is necessary." 

These arguments, moreover, were reinforced by others which 
were purely provincial and anti-federal — though seldom avowedly so. 
Distrust of Victoria, and the other colonies — an alleged " conspiracy " 
to make Melbourne the federal capital, to annex the trade of Riverina, 
and to steal the rivers of Xew South Wales — formed the stock-in- 
trade of that section of the Anti-Bill party which was really anti- 
federal, and which appealed rather to prejudice than to reason. The 
stronghold of this section was in Sydney. What may be called the 
" old Sydney " party had never been enthusiastic for Federation. 
The intercolonial jealousies and rivalries of a generation ago had left 
their mark, and the motives of the other colonies were objects of 
suspicion. It was thought that the claims of Xew South Wales as 
the mother-colony, and of Sydney as the metropolis of Australia, 
had not been duly recognized, and in fact Xew South Wales was 
looked upon as the destined victim of scheming neighbours. Tiiese 
fears, partly a survival of empty prejudices, were in part also do© to 
a short-sighted view of the trade necessities of New South Wales. 
Historical circumstances which it is unnecessary to recapitulate had 
left Xew South Wales with outlying territories southwards, west- 
wards, and northwards, which were geographically nearer to 
Melbourne, to Adelaide and to Brisbane than to Sydney ; and many 
people earnestly believed that it was necessary in the interests of 
Sydney — and tried hard to believe that it was necessary in the 
interests of the whole of New South Wales — to keep an octopus grip 
on the whole trade of this territory, no matter at what inconvenience 
to the producers and cost to the public. The doctrine not unreason- 
ably preached by Victoria and South Australia, that " trade should 
flow in its natural channels," was held to be rank heresy ; and no 
doubts were entfjrtained that the merits in the great battle of railway 
rates were wholly with X^'ew South Wales. Viewed from this stand- 
point, the carefully contrived compromises as to railways and rivers 
seemed to be a traitorous surrender of the rights and privileges of 
New South Wales, and were denounced accordingly in no measured 
terms. 

The " Anti-Billites " were first in the field, but the champions of 
the Constitution were not long in following. Mr. Barton, and six of 
his fellow-representatives at the Convention, were untiring in 
advocacy : federalists from the freetrade and protectionist parties 
alike rallied energetically ; the Federation Leagues throughout the 
colony helped so far as their non-party organization enabled them to 
do so ; and a strong campaigning body, called the New South Wales 
Federal Association, was organized. Of the Sydney daily press, the 



208 HISTORICAL INTRODUCTION. 

Morning Herald and the Evening News supported the Bill, and the 
great majority of the provincial press followed suit. 

The friends of the Bill had the advantage in debating strength, 
and had all the weight of national sentiment on their side; its enemies 
had provincial prejudices and vested interests to help them, and had 
also the advantage, which the critics of a definite and detailed piece 
of legislation always have, of being able to choose innumerable points 
of attack, and challenge the federalists to justify the Bill clause by 
clause, and line by line. The issue was doubtful, and the great 
question was — on which side would Mr. Reid throw his great influence 
and his unrivalled powers as a platform speaker ? As Premier of the 
leading colony, and the man at Avhose invitation the process of framing 
the Constitution had been entered upon, he had a heavy responsibility; 
and it was no secret that he was not wholly satisfied with the Bill. 

Mr. Reid kept his own counsel until 28th March, when he 
addressed a vast meeting at the Sydney Town Hall. He analyzed the 
Bill from beginning to end, criticized unsparingly what he thought to 
be its defects, touched more lightly on its merits, and ended Avith a 
dramatic declaration that, in spite of all his criticisms and objections, 
he personally could not be " a deserter to the cause ; " that he would 
vote for the Bill himself — words which were greeted with an outburst 
of enthusiasm — but would abstain from any recommendation to the 
electors, one way or the other. Of course, he was claimed b}* both 
sides — the " Billites " pointing to his vote, and the " Anti-Billites *' to 
his arguments. During the campaign he only made three other 
speeches — at Goulburn, Bathurst and Newcastle; and though he still 
declined to oifer advice, his influence undoubtedly was cast against 
the Bill. Subsequently Mr. Lyne and Mr. Brunker declared against 
the Bill. 

As time went on, the points of attack were multiplied; a word 
here, and a phrase there, were culled out to show the iniquity of the 
measure. But the main line of criticism remained the same. Equal 
representation would be "the death-knell of majority rule;" the 
"dead-lock fraud ^' would be utterly ineffective; the Inter-State 
Commission would hand over the railways of New South Wales to the 
other colonies; the federal capital would be in Victoria. The real 
strength of the attack, however, was directed against the financial 
clauses. It was here that Mr. Reid's criticisms had b^en most telling; 
and rival experts — Mr. Edward Pulsford and Mr. Bruce Smith for the 
Bill, Mr. R. L. Nash and Mr. Coghlau against it — eng'aged in a duel 
of figures which made the bewildered electors ask " What is truth ? " 
The Anti-Bill statisticians maintained their forecast of an impossibly 
high tariff, and heaped ridicule upon the unfortunate " Braddon blot;" 
their opponents challenged their assumptions, condemned their Fore- 
casts as unreliable guesswork, and maintained that the Bill did not 
require excessive taxation. The undeniable fact, which thie freetraders 
had to face, was that the federal tariff would be framed to produce 
more revenue than the existing tariff of New South \Wales — not 
because the Constitution required it, but because the pec^ple of Aus- 
tralia would require it; and this, from the freetrade a^.pect, was a 
point scored against Federation. At last the Governmer|it appointed 



THE FEDERAL MOVEMENT IN AUSTRALIA. 209 

a Commission, consisting of Mr. J. Russell French (a banker whose 
federal views were unknown), Dr. MacLaurin (a strong critic of the 
Bill), and Mr. Bruce Smith. Witnesses were examined, and on 17th 
May a report was presented which — like Mr. Reid's speeches — was 
claimed bj both sides as a "triumph." In reality it told against the 
Bill ; for, though it did not bear out the figures of the extreme 
alarmists, it adopted some of their methods, to which it gave a semi- 
official authority. 

The two sides were thus left as hopelessly at issue as before. On 
one point only was there no substantial dispute — that the new ex- 
penditure for federal establishments would be an inconsiderable item, 
which might be set down — after allowing a liberal margin — at 
£300,000 a 3'ear for all the colonies. But the opponents of the Bill 
proceeded to forecast the necessity of ruinous taxation by the follow- 
ing argument. They first calculated the " net deficiency " which each 
State would have after Federation, supposing no customs or excise 
revenue whatever were returned by the Federal Government. This 
they arrived at by simply subtracting the expenditure of which the 
State would be relieved from the revenue of which it would be 
deprived. They then assumed that this " net deficiency " of each 
State was an absolute " requirement " of the State, which must be 
made up to it by the Commonwealth out of customs and excise 
revenue. This involved the assumption that the federal tariff must 
be screwed up to meet the requirements of the weakest State ; 
because, under the distribution clauses, each State could only get 
back the amount of its own contribution — or rather, the balance of its 
contribution after deducting its share of the federal expenditure. 
They then *' calculated " the relative percentages which each State 
would contribute to a common tariff. The first of these calculations 
— made for the Adelaide Convention — was based frankly on the 
existing import figures of the various colonies under their widely 
differing tariffs ; and of course the result of applying, say, the 
Victorian protectionist tariff to the actual imports of New South 
Wales under a freetrade system gave a startlingly high forecast of 
the contributions for the latter colony. The absurdity of the assump- 
tion led to considerable modifications of these estimates ; but it was 
still contended that New South Wales would contribute an abnormally 
high percentage of revenue, at least for many years. The conclusion 
of this elaborate argument was that a tariff high enough to squeeze 
out of (say) Tasmania enough revenue for her wants would inflict a 
huge burden of utterly unnecessary taxation upon New South Wales; 
and though the bulk of this would find its way back to the Treasurer 
of New South Wales, it would leave him with the demoralizing 
temptations of an unmanageable surplus. In this argument — which 
was waged at immense length in the newspapers — the " Braddon 
Blot" had no place whatever ; that was reserved for another line of 
attack. 

The friends of the Bill replied that the whole argument rested 
on a series of false assumptions. The fixed " deficiencies " were 
imaginary, and involved the impossible task of foretelling the revenue 
and expenditure of each State four or five years in advance. There 



210 HISTORICAL INTRODUCTION. 

was no justification for assuming that the States could not diminish 
their " requirements " by savings in expenditure ; or that any State 
which^ under a reasonable federal tariff, had a provincial deficiency, 
could not meet it by provincial taxation. The estimates of the per- 
centage of New South Wales contributions were excessive, and the 
figures were unduly swollen by refusing to take into account the 
probable savings due to Federation, whilst loading the expenditure 
with the most liberal margins for contingencies. In short, it was 
argued that the Commonwealth would have a perfectly free hand in 
framing a tariff ; and that under a very moderate revenue tariff each 
State would be left in a perfectly solvent position. It was not denied 
that New South Wales would be submitted to some additional taxation 
through the customs ; but that was the necessary result of a uniform 
tariff, and was not due to the financial scheme of the Bill. Moreover, 
the favourable position of New South Wales as regards taxation was 
not due to superior wealth, but to the fact that she was living on 
capital in the shape of the revenue from the alienation of land ; she 
was not at present taxed up to her real requirements, and an increase 
of taxation revenue would render a sounder system of finance 
possible. 

Mr. Nash frankly admitted that the faults of which he complained 
were inseparable from the scheme of Federation proposed, and he 
advocated, as the only solution, a system which would include the 
immediate federation of railways and debts. These views, however, 
were not popular in New South Wales, and most of the critics, while 
having no suggestions of their own to offer, tacitly assumed that a 
better way was available. They were convinced that a better Bill 
could be " fixed up in half an hour " — but they had not half an hour 
to spare. 

The progress of the fight showed that the objectors and doubters 
were in great force, especially in and near the metropolis. Along the 
borders, and especially in the Riverina district, the disadvantages of 
disunion were so apparent that criticism had less weight, and there 
was a general disposition to accept with enthusiasm the work of the 
Convention. 

Victoria. — In Victoria, the fight was a one-sided affair from the 
outset. This fact — which anti-federalists in the mother-colony ascribed 
to an eagerness to "loot New South Wales ^' — was really due to quite 
different causes. In the first place, the sentiment of nationality was 
far more developed and better organized in the southern colony. The 
credit of this was chiefly due to the Australian Natives' Association — 
an institution which had received its chief development in Victoria, 
and which, on the basis of a mixed friendly society, mutual improve- 
ment society, and national association, extended to every corner of 
the colony, and had immense power by reason of its organization and 
its enthusiasm. Founded in 1871, it was already a great power in 
politics, and a recognized ladder to a Parliamentary and Ministerial 
career. Federation had long been its watchword; it had urged 
Governments to action, suggested schemes of its own, and lent 
encouragement to the schemes of others. It had produced the 
Bendigo scheme, the germ of the Federal Enabling Acts under which 



THE FEDERAL MOVEMENT IN AUSTRALIA. 211 

the Constitution had been framed ; it had contributed three represen- 
tatives to the Convention — Mr. Deakin, Mr. Peacock, and Dr. Quick. 
And finally, at a critical juncture, on the eve of the adoption of the 
Constitution by the Melbourne Convention, when the Age advocated 
the Fabian policy of caution and delay, and when the Turner Ministry, 
or at least some members of it, seemed to hesitate, the Association at 
its annual conference held at Bendigo, stimulated by the inspiring 
eloquence of Mr. A. Deakin and Mr. -J. L. Purves, announced its 
support of the Bill with a declaration of triumphant enthusiasm that 
left no doubt as to the result. 

Another reason for the comparative weakness of the opposition 
in Victoria was that the financial obstacles were less than in New 
South Wales. New South Wales, in the matter of customs taxation, 
occupied a position at the extreme end of the group ; Victoria was 
near the middle. It was apparent that a tarifE of approximately the 
productiveness of the Victorian tariff would fairly meet the needs of 
the Commonwealth; and though that productiveness might be 
attained by a moderate revenue tariff as well as by the existing pro- 
tective tariff of Victoria, the fears of producers that their protection 
might be reduced affected few pockets as compared with the fears 
of tax-payers in New South Wales that their taxation would be 
increased. 

There was, nevertheless, a substantial Anti-Bill party in Victoria, 
led by Mr. Higgins — the only one of the ten Victorian representatives 
who did not support the Bill. His objections were almost wholly 
from a constitutional standpoint, and were directed against equal 
representation in the Senate, and against the restrictions upon the 
amendment of the Constitution. He was supported by a section of 
the labour party, which was however hopelessly divided — seeing that 
Mr. Trenwith, the ablest and most influential of the party's leaders, 
was warmly advocating the Bill. These were the most effective 
criticisms used against the Bill in the metropolitan centres ; but in 
the country districts the chief concern was over the abolition of the 
stock tax, which would have to go when intercolonial freetrade began. 
The farmers had an unbounded belief in the extra value added to 
their land and stock by this tax ; and Mr. Allan McLean, its chief 
apostle, conducted a vigorous campaign agaiust the Bill. 

There was some dissatisfaction in Victoria with the " railway 
rate " clauses, which the Premier and Attorney-General of Victoria — 
in spite of the precisely opposite fears expressed in New South Wales 
— feared would unfairly hamper Victorian competition for the 
Riverina trade, whilst leaving New South Wales free to do as she 
liked, under the pretext of developing her territory and making her 
railways pay. However, after a report from Mr. Mathieson, the 
Commissioner for Railways, which went to show that the revenue 
loss, on the most unfavourable interpretation of the Bill, would not 
be considerable, the Victorian Ministry announced their unanimous 
support of the Bill. 

A few vested interests felt some mild alarm about bounties and 
protective duties. The clause prohibiting the granting of bounties 
by the States, except with the consent of the Federal Parliament, 



212 HISTORICAL INTRODUCTION. 

had in New South Wales been thought to hide a cunning conspiracy 
to enable its provisions to be evaded, and Victorian bounties to be 
perpetuated ; in Victoria it was complained of as a death-blow to the 
few bounty-assisted industries in existence. Nor did the Victorian 
Anti-Billites share the confidence of their brethren across the Murray 
that the federal tariff must inevitably be protective ; and they would 
fain have seen some guarantee against the predominance of freetrade 
views in the Commonwealth. 

All these arguments were overwhelmingly answered by the 
federalists, who, strong in numbers, in debating ability, and in 
enthusiasm, swept the country with an unbroken series of campaign- 
ing triumphs. Victoria as a whole had confidence in the Conven- 
tion, and confidence also in the ability of the Australian people to 
work out their own destiny under a free Constitution. The federal 
compromises were accepted as necessary conditions of union, and the 
fears of the Anti-Billites were outweighed by the obvious commercial 
advantages of Federation, and by the strong sentiment in favour of 
national institutions. The Victorian newspapers almost unanimously 
supported the Bill. The Argus, the Australasian, and the Evening 
Herald in the metropolis, and the Bendign Advertiser, the Bendigo 
Independent, the Bendigo Evening Mail, the Ballarat Courier, the 
Ballarat Star, the Geelong Advertiser, the Geelong Times, the Gipps- 
land Times, and other country journals gave the Bill powerful 
advocacy. The Age and the Leader were not opposed to federation, 
but anxious to promote the improvement of the Bill. Although 
doubtful and critical at first, the Age eventually, in consider- 
ation of the many democratic features of the Constitution render- 
ing it moi'e liberal even than the Constitution of Victoria, recom- 
mended its acceptance with the hope of securing its reform at a 
later stage. 

South Australia. — In South Australia all the federal representa- 
tives united in an appeal to the electors to vote for the Bill. The 
chief difficulties that had to be met were the fears that the cost would 
be excessive, and that the rights and interests of the less populous 
States would be unduly subordinated to the mass vote of the majority. 
But the argument of the advantages of union, and especially the 
benefits arising from intercolonial freetrade, prevailed ; and the issue 
was never really in doubt. 

Tasmania. — In Ta/smania there was widespread dissatisfaction, at 
the outset, with the provisions limiting the powers of the Senate, 
which were thought to endanger the interests of the smaller States; 
and it was also feared that, notwithstanding the Braddon clause, there 
were not sujQftcient " guarantees " that the surplus returned to Tasmania 
would enable her to meet her provincial obligations. However, the 
federal representatives threw themselves courageously into the fight, 
and their efforts were rewarded with complete success. 

The Vote op the People. — The result of the voting in the 
four colonies for and against the draft Constitution was as 
follows : — 



THE FEDERAL MOVEMENT IN AUSTRALIA. 



213 





N.S.W. 


Victoria. 


j 

S. Australia, j 


Tasmania. 


Total. 


For 

Against... 


71,595 

66,228 


100,520 
22,009 


35,800 
17,320 


11,797 
2,716 


219,712 
108,363 


Majority for the^ 
Constitution . . . ! 


5,367 


78,421 


1 

18,480 

1 


9,081 


111,349 



There was thus a majority for the Bill in each of the four colonies. 
In Victoria, South Australia, and Tasmania, the majorities were 
decisive ; but in New South Wales not onlv was the majority a slender 
one, but the total affirmative vote fell short by 8,405 of the 10,000 
minimum required by the Federation Enabling Act Amendment Act 
of 1897. In Xew South Wales, therefore, under the provisions of the 
Act, the barely victorious Bill was " deemed to be rejected " — the 
prescribed effect of which was to be that in New South Wales " no 
further action shall be taken pursuant to this Act." In other words, 
the whole statutory process, so far as New South Wales was concerned, 
was at an end. 



(15) EVENTS IN NEW SOUTH WALES. 



The Task Resumed. — Had the federalists in New South Wales 
been in an actual minority, the discouragement would have been 
serious ; but their majority, slender as it was, spurred them to fresh 
exertions. On the evening of 3rd June, an accidental duplication of 
some of the telegraphic returns had caused the coveted 80,000 to be 
posted at the Sydney Morning Herald office, and for a few minutes 
federalists were congratulating themselves on having won the battle. 
In the first disappointment of the awakening, some brave words were 
said about repealing the Act requiring an 80,000 minimum; but 
calmer judgment showed the unwisdom of " cramming the Bill down 
the throats " of a minority, many of whom were rather fearful than 
hostile. It was clear that some effort must be made to secure amend- 
ments which would dispel the fears of opponents, and diminish the 
opposition ; but Mr. Barton and his following wisely held their hands 
until Mr. Reid, as Premier of the colony, should open negotiations. 

This Mr. Reid promptly did. The day after the referendum he 
telegraphed to the other Premiers inviting them to a Conference with 
a view of amending the Bill to meet the wishes of New South Wales, 
and suggesting that the amendments, when agreed upon, should 
be transmitted ^\4th the draft Constitution to the Imperial Govern- 
ment. The Premiers did not receive this suggestion with favour. 
Their own colonies had given overwhelming majorities for the Bill, 
and they resented the idea that, at the instance of a minority in 
-New South Wales, they should be asked to reopen the question — 
especially as New South Wales was on the eve of a general 



214 HISTORICAL INTRODUCTION. 

election, and it remained to be seen whetlier that colony could 
not yet be brought into line. The Premiers of South Australia, 
Western Australia, and Tasmania, refused point blank to confer; 
whilst Sir George Turner, in Victoria, replied diplomatically that 
it would be well for Mr. Reid to intimate what amendments he 
desired. Mr. T. J. Byrnes, the Premier of Queensland, whom Mr. 
Reid had also consulted, expressed his willingness to confer; but the 
attitude of the other Premiers made it clear that nothing could be 
done till after the New South Wales elections. 

The expiring Parliament met on 21st June, and the Governor's 
speech disclosed Mr. Reid's federal programme. After reciting the 
result of the Referendum, and the de jure rejection of the draft Con- 
stitution, the speech proceeded : — 

" The Government are not prepared, however, to abandon their 
efforts to arrive at a satisfactory removal of those features of the Bill 
which have prevented the people of this country from voting more 
largely in its favour, and which have caused so many thousands of 
the electors to vote against it. 

"My advisers are, therefore, anxiously engaged upon the 
preparation of proposals to modify the Convention Bill in certain 
respects. These will shortly be submitted in clear and definite tei*ms 
to the electors of New South Wales. 

" They will include : — 

1. An objection to the principle of equal representation in the 

Senate, which, if not altered, must be accompanied by the 
removal of the stipulation requiring that a majority vote 
at a joint sitting of both Houses, to be effective, shall 
consist of three-fifths of the members present ; or, failing 
that, the principle should be qualified by a provision for a 
national referendum instead of a joint sitting. 

2. Some of the financial provisions to be recast, and the Braddon 

clause omitted altogether, 

3. Money bills not to be amended by the Senate. 

4. The same protection for the territorial rights of each State, 

as there is for the representation of each State in the 
federal Parliament, and this should include more definite 
provisions with regard to inland rivers. 

5. Seat of Government — instead of the proposal in the Bill, 

adoption, in a slightly modified form, of the plan followed 
in the Canadian Constitution. 

6. It is also considered that the appellate jurisdiction should be 

remodelled." 
The bulk of the session, which only lasted three weeks, was taken 
up, m both Houses, with the Address-in-Reply. The main attack 
upon the Government programme came from Mr, Barton and Mr, 
O'Connor in the Legislative Council. They objected strongly to the 
demands of New South Wales being stated in the form of an 
ultimatum before conference, and maintained that the Government 
ought to go untrammelled into conference, and negotiate for the best 
terms possible. Moreover, they challenged Mr. Reid's good faith in 
the matter, and especially pointed to the fact that Mr. Want — who 



i 



THE FEDERAL MOYEMENT IN AUSTRALIA. 215 



had left the Ministry to lead the opposition to the Bill, and whose 
criticisms had a decidedly anti-federal complexion — had since the 
Referendum been readmitted to the Ministry. As regards amend- 
ment in the draft Constitution, they took this position. They believed 
that the Bill was a good and a fair one, and had heartily recommended 
it for acceptance. With some of the provisions they had never been 
fully in accord, but they had loyally accepted the whole as the best 
■compromise available. It now appeared that a large minority of the 
people were dissatisfied ; and they recognized not only that an effort 
must be made to secure amendments which would meet the chief 
objections made, but also that the result of the vote — showing as it 
did that unless some amendments were made it would be difficult to 
secure the adherence of New South Wales — made concessions possible 
which previously would have been impossible. Mr. Barton therefore 
approved of asking for reconsideration of the Bill with a view to 
three amendments — the removal of the three-fifths majority at the 
joint sitting, the omission of the Braddon clause, and the location of 
the capital m New South Wales. 

The General Election. — Parliament was dissolved on 8th July, 
and the campaign began at once. Mr. Reid and the Ministerialists 
took the field as the " Liberal Federal Party," whilst Mr. Barton led 
the Opposition on behalf of the " National Federal Party." Federa- 
tion thus became, for the first time, a question of party politics ; and 
curiously enough, both parties seemed to be fighting for substantially 
the same thing — the draft Constitution, with a few amendments. 
The amendments foreshadowed by Mr. Barton were indeed only three, 
as against Mr. Reid's seven ; but that was not the real distinction 
between the parties. The real difference was of a twofold kind, 
involving a question of federal attitude, and a question of leadership. 
In the first place, Mr. Reid and his following were definitely hostile to 
the Bill as it stood, and demanded substantial amendments as a con- 
dition of its acceptance. Mr. Barton and his following had been, and 
still were, ready to accept the Bill as it stood ; but urged amendments 
with the double view of making it a still better Bill and of conciliating 
opposition. Consequent upon this difference of attitude, the Reid 
party urged that Mr. Reid stood for the interests of New South 
Wales, and Mr. Barton for those of the other colonies — that Mr. 
Reid's demands would meet acceptance, whilst Mr. Barton's " nego- 
tiations " meant surrender. The Barton party replied that no agree- 
ment could be reached by a policy of dictating terms; that Mr. 
Barton, as a persona grata to the other colonies and the trusted leader 
of the federalists, would be able to make better terms than Mr. Reid ; 
and that the interests of New South Wales, as well as those of 
Australia, would be safe in his hands. 

The main issue, however, was mixed up in every electorate, not 
only with the personal claims of the candidates, but with the old lines 
of party cleavage. The " fiscal issue " was indeed supposed to be 
sunk ; but the fact that in the Ministerial party freetraders pre- 
ponderated, and in the Opposition party protectionists, showed that 
the allegiance of many candidates was influenced by the old party ties. 
The same thing undoubtedly held true of the electors, and stood in 
the way of a " straight out " issue on the federal programme. 



216 HISTORICAL INTRODUCTION. 

The result of the general election, which took place on 27th 
July, was very evenly balanced. Mr. Reid himself defeated Mr. 
Barton in the King Division of Sydney ; but his previous large Par- 
liamentary majority was reduced to a narrow majority of about four — 
including the labour party — whilst three Ministers lost their seats. 
But though neither party could claim a triumph. Federation had 
undoubtedly won all along the line. The preceding Legislative 
Assembly, though not avowedly anti-federal, was so trenchantly 
critical of the whole Commonwealth scheme as to be, m effect, hostile 
to Federation. In the new Assembly, every member stood pledged to 
the main principles of the draft Constitution, and the debatable 
points were narrowed down to a small schedule of amendments. The 
unanimity was perhaps more apparent than real. Both parties 
numbered adherents whose federal sentiment was little more than a 
polite concession to the necessities of party unity. Still, the fact that 
there were two federal parties and no anti-federal party — nor even an 
avowedly anti-federal candidate for election — showed the immense 
development of popular feeling in New South Wales. Federation 
may be said to have been assured from the date of the election. 

The Federal Resolutio^is. — Parliament met on 16th August, and 
after the adoption of the Address-in- Reply, Mr. Reid introduced his 
federal resolutions. The first resolution affirmed the desire of the 
House that " steps should be taken without delay, in conjunction with 
the other colonies, to bring about the completion of federal union." 
The second resolution affirmed the desire of the House ''that the 
other colonies should agree to reconsider those provisions of the Bill 
most generally objected to in New South Wales,^' and proceeded to 
" submit for the consideration of the other colonies " the following 
propositions : — 

(a) Representation in the Senate. — That if equal representation be 
insisted upon, the provision for a three-fifths majority at a 
joint sitting of both Houses should be removed, and that a 
simple majority should decide; or that the provision for a 
joint sitting be replaced by a provision for a national 
referendum. 

{b) The 87th clause, known as the Braddon clause. — That this 
clause should be removed from the Bill. 

(c) I'he capital of the Commonwealth. — That clause 124 should be 

amended, and provision made in the Bill for the establish- 
ment of the federal capital in such place within the 
boundaries of New South Wales as the Federal Parliament 
may determine. 

(d) The boundaries of States. — That better provision should be 

made against the alteration of the boundaries of a State 
without its own consent — namely, by the protection 
afforded by clause 127, as to the representation of States. 

(e) Inland rivers. — That the use of inland rivers for purposes of 

water conservation and irrigation should be more clearly 
safeguarded. 



THE FEDEKAL MOVEMENT IN AUSTRALIA. 217 

(/) Money Bills. — That there should be a uniform practice iu 
respect to such Bills, namely, that provided in the case of 
taxation Bills and Bills for the ordinary annual services of 
the Commonwealth. 

{g) Judicial appeals from States. — That the mode of appeal from 
the Supreme Courts of the States should be made uniform, 
namely, the appeal should either be to the Privy Council 
or to the High Court, but not as at present, indiscrimi- 
nately to either. 

The third resolution dealt with the financial system of the Bill, 
and supplemented the suggestion for the removal of the Braddon 
clause as follows : — 

(3) Although prepared, for the sake of union — if it be placed in 
other respects upon a fair and just footing — to accept the 
financial system embodied in the Bill, with the one excep- 
tion mentioned, this House earnestly invites further 
inquiry into, and a more thorough consideration of, the 
financial clauses, regarding as evils to be avoided if possible 
excessive burdens of taxation, a prolonged system of book- 
keeping, uncertainty as to the amount of surplus to be 
divided, and uncertainty as to the method of distributing 
it among the States. 

It was recognized on all hands that these resolutions were 
studiously moderate in tone, and that the language of demand had 
been renounced in favour of the language of request. Nevertheless, 
Mr. Barton still feared that the difference might be merely one of 
form, and that under the velvet paw of " negotiation " might lurk the 
claw of dictation. He still objected to the requests of the House being 
embodied in a "placard," and thought that the Government ought 
merely to have defined its policy and then asked the House for 
authority to confer. However, the resolutions were debated in the 
House and in Committee, and were passed, with the addition of 
requests for the consideration of the two following propositions (the 
first moved by Mr. J. S. T. McGowen, leader of the Labour Party, 
and the second by Mr. Henry Copeland) : — 

(h) The alteration of the Constitution. — That clause 127 should 
be altered to provide : — 

1. That any proposed alteration of the Constitution, 

approved by both Houses and a national 
referendum, should be submitted to the 
Governor-General for the Queen's assent. 

2. That, where a proposed alteration has been affirmed 

in two succeeding sessions by an absolute 
majority in one House, but rejected by the 
other, such proposed alteration should be 
submitted to the national referendum. 



218 HISTORICAL INTRODUCTION. 

3. That, respecting proposed alterations transferring 
to the Commonwealth any of the powers 
retained by the several States at the date of 
their acceptance of the Constitution, such 
alteration should not take effect in any State 
unless approved by a majority of electors in 
such State voting. 
(i) Number of Senators. — That the number of Senators from 
each State should be increased from six to not less than 
eight. Twenty Senators, including the President or 
Chairman of Committees, to constitute a quorum. 
In the Legislative Council the same resolutions, with Mr. 
McGowen^s and Mr. Copeland's propositions attached, were moved 
by Mr. J. H. Want, the Attorney-General. After debate, they were 
passed with the following substantial modifications: — (1) The sugges- 
tion of a national referendum as an alternative to a joint sitting was 
struck out. (2) The proposition that the federal capital should be in 
New South Wales was — by a majority of one — amended so as to 
require that the capital should be in Sydney. (3) As to rivers, the 
Council asked that their use for irrigation and conservation, instead 
of being merely " more clearly safeguarded," should be "^ preserved 
for their respective colonies." In Resolution 3, the declaration that 
the House was " prepared for the sake of union to accept the financial 
system embodied in the Bill" was struck out. Mr. McGowen's 
proposal for the alteration of the Constitution was also struck out, 
and replaced by a resolution objecting to the plan of submitting 
alterations of the Constitution to a Referendum, but asking that any 
alteration transferring State powers to the Commonwealth should not 
take effect in any State without the consent of both Houses of 
Parliament of that State. 



(16) THE PREMIERS' CONFERENCE, 1899. 



No attempt was made to harmonize the resolutions of the two 
Houses; and on 29th January, 1899, the Premiers of all the six 
colonies met at Melbourne, at Mr. Reid's request, to consider the 
suggestions made by New South Wales. A noteworthy feature of 
this meeting was that Queensland, which since the Hobart Conference 
of 1895 had stood aloof from the movement, was represented by its 
new Premier, Mr. J. R. Dickson. The conference was held behind 
closed doors, and lasted till 2nd February, when a unanimous agree- 
ment was arrived at which all the Premiers agreed to submit to their 
respective Parliaments for reference to the electors. 

The Joint Sitting. — The first request of New South Wales was 
almost wholly complied with. The requirement of a three-fifths 
majority at a joint sitting was done away with ; and replaced, not 
indeed by a simple majority, but by " an absolute majority of the 
total number of the members of both Houses." 



THE FEDERAL MOVEMENT IN AUSTRALIA. 219 

The Frs'A^'CiAL Clauses. — The financial question proved the 
hardest of all to solve, and nearly caused a break-up of the Con- 
ference. Several brand-new financial schemes were offered, but none 
of them met with general acceptance, and the Conference, like the 
Convention, was obliged to fall back on the scheme in the Bill. As 
to the Braddon clause, every one was willing to let it go, if any 
substitute could be found ; but every cure seemed worse than the 
disease. The Conference reported as follows : — 

" The Premiers have given full consideration to the objections 
which have been urged against this clause, and have also considered 
other proposals which have been suggested for the purpose of giving 
some security to the States that a reasonable amount of the revenue 
collected in the States shall be returned to them, while, if possible, 
avoiding excessive burdens of taxation, a prolonged system of book- 
keeping, uncertainty as to the amount of the surplus to be divided, 
and uncertainty as to the method of distributing the surplus amongst 
the States. 

" The Premiers consider that all the other proposals are open to 
more serious objections than those which have been raised against the 
clause as it appears in the Bill; but with a view of meeting the 
objections as far as possible, consistently with the safety of the 
States, the Premiers are of opinion that the operation of the clause 
should not continue after a period of ten years if the Parliament then 
desires to repeal or alter it ; and that, in addition, power should be 
granted to the Parliament to deal with any exceptional circumstances 
which may from time to time arise in the financial position of any of 
the States." 

To give effect to these opinions, they limited the Braddon clause 
to " a period of ten years after the establishment of the Common- 
wealth, and thereafter until the Parliament otherwise provides ; " and 
added a new clause (sec. 96) empowering the Parliament, during the 
same period, to grant financial assistance to any State. 

Tbe Federal Capital. — With regard to the Federal Capital, the 
Conference reported thus : — 

" It is considered that the fixing of the site of the capital is a 
question which might well be left to the Parliament to decide ; but in 
view of the strong expression of opinion in relation to this matter in 
Xew South Wales, the Premiers have modified the clause, so that 
while the capital cannot be fixed at Sydney, or in its neighbourhood, 
provision is made in the Constitution for its establishment in New 
South Wales at a reasonable distance from that city." 

Accordingly the request of Xew South Wales, that the capital 
should be in that colony, was granted ; but with two conditions which 
Victoria insisted upon : (1) that it should not be within 100 miles of 
Sydney; (2) that the Parliament should sit at Melbourne until it met 
at the seat of Government. 

BouxDAEiES OF States. — The protection asked for by Xew South 
Wales against the alteration of the boundaries of any State without 
its consent was given, by requiring that any law or constitutional 
amendment to that effect should be submitted to the electors of the 
State affected, and should require the assent of a majority of those 
voting. 



220 HISTORICAL INTRODUCTION. 

Alteration op the Constitution.— With regard to the suggested 
amendments in the mode of altering the Constitution^ the Premiers 
reported as follows : — 

" The Premiers agree that, where there is a difference of opinion 
between the two Houses as to Avhether the people should have the 
opportunity of deciding if any alteration should be made in the pro- 
visions of the Constitution, one House should not have the power to 
prevent the question being decided by the people. They have there- 
fore endeavoured to provide a means whereby, after full discussion 
and reasonable delay, the matter may be referred from either House 
to the electors. The Premiers are unable to agree that the decision 
should rest on the result of a National Referendum, it being considered 
of vital importance that any alteration in the Constitution which the 
States have agreed to accept should only be made if a majority of the 
electors of the Commonwealth and also a majority of the electors in 
a majority of the States determine that it is proper to make such 
alteration." 

Accordingly the provision was inserted which enables a proposed 
law for the alteration of the Constitution, if twice passed by either 
House of the Federal Parliament, to be submitted to a Referendum 
notwithstanding the dissent of the other House. 

Other Suggestions. — As to Rivers, Money Bills, and Judicial 
Appeals, the Premiers after fully considering the proposals of New 
South Wales did not find it practicable to recommend any alteration 
of the Bill ; whilst they did not regard as desirable the proposed 
increase in the number of Senators. But in addition to the amend- 
ments made at the instance of New South Wales, one was agreed to 
at the instance of Queensland. To meet the peculiar conditions of 
that colony, it was provided that if Queensland joined as an Original 
State, the Parliament of that State might, pending federal legislation, 
divide the State into electorates for the purposes of Senate elections. 

Result op the Conference. — As a result of the Conference, 
therefore, seven amendments were made in the Bill — six at the 
instance of New South Wales, and one at the instance of Queensland. 
The three main requests of New South Wales had each been met 
by a substantial concession. The abolition of the three-fifths 
majority was a great extension of the actual, as well as the moral, 
efficiency of the deadlock clause. The provision as to the capital 
prevented the possibility of the permanent seat of Government being 
fixed anywhere but in New South Wales. As to the Braddon clause 
— the temporary retention of which was a general surprise, for it had 
few friends — it was certainly a great advantage to diminish its rigidity 
by placing it, after ten years, at the mercy of the Parliament, and 
thus obviating the necessity for a constitutional amendment if its 
removal should prove desirable. 



THE FEDERAL MOVEIMENT IN AUSTRALIA. 221 

(17) ADOPTION OF THE CONSTITUTION, 1899. 

The Position in New South Wales. — A welcome piece of news 
to federalists was Mr. Eeid's prompt announcement that he had done 
with doubt and indecision, and would support the amended Bill with 
all his powers. It soon became evident, however, that the opposition 
in New South Wales would be strong. The Sydney Daily Telegraph, 
on second thoughts, took up as uncompromising an attitude as ever, 
and the opposing forces began to consolidate themselves. Their cry 
was that the " demands '* of New South Wales had been trifled with, 
and that the Bill was in substance "the same old Bill." The absolute 
majority at the joint sitting was denounced as being little if any 
better than the three-fifths majority, and elaborate calculations were 
made to show how New South Wales would invariably be defeated if 
most of her representatives absented themselves. The "Braddon 
Blot " was the subject of renewed attack, and its limitation in point of 
time was made light of. The 100 mile limit for the federal capital 
was complained of as a gross insult to Sydney — the corresponding 
"insult" to the rest of Australia, implied in the demand made by 
New South AVales, being ignored. The provision was in fact a most 
unfortunate one, because it aroused fierce opposition in the metropolitan 
and suburban area — the very district which it was most important to 
conciliate. In particular the provision for the temporary meeting of 
Parliament in Melbourne was attacked as hiding a deep conspiracy to 
establish the seat of Government there permanently, and it was 
roundly stated that Mr. Reid had been "outwitted" by the cunning 
of the other colonies. The real fight, however, centred round the 
financial clauses, against which all the old arguments were reiterated, 
but with greater wealth of detail. 

The Exablixg Bill. — The New South Wales Parliament met on 
21st February, and the new Enabling Bill was at once introduced in 
the Assembly. It provided for the submission of the amended Con- 
stitution to a Referendum, at which a simple majority was to decide ; 
and it allowed any holder of an elector's right to vote at any polling- 
booth in the colony, whether or not he was qualified as a Parliamen- 
tary voter for any electorate. In the Assembly no difficulties were 
met ; even the malcontents admitting that the Constitution must be 
submitted to the people, and reserving their hostility for the present. 
In Committee, amendments were moved to make acceptance by an 
" absolute majority " of all the electors necessary ; to make the 
inclusion of Queensland a condition of New South Wales entering the 
Federation; and to take an alternative referendum on the Bill as 
amended by the Premiers, and on the Bill " as amended by the Legis- 
lative Assembly of New South Wales." The object of all these 
amendments, however, was too apparent, and they were all defeated 
by overwhelming majorities. An amendment was also moved to defer 
the referendum for three months after the passing of the Bill ; but 
this was withdrawn on the Premier undertaking to allow an interval 
of six weeks. 

The Bill passed the Assemblj'' without amendment, and went to 
the Council, where it met with a very different reception. A large 



222 HISTORICAL INTRODUCTION. 

petition was presented against the Bill^ and the opposition was led by 
Dr. McLaurin with a powerful attack on the financial clauses, which 
he claimed to be unworkable. In Committee, three vital amendments 
were passed by large majorities; one to defer the referendum for 
three months; another to make acceptance by one-third of all the 
electors necessary; and a third making the inclusion of Queensland a 
condition of Federation. To these amendments the Assembly refused 
to agree; the Council insisted, and a free Conference was held, but 
both sides were unyielding, and on 30th March Parliament was 
prorogued. 

The Council was at this time much below its normal strength, 
owing to deaths and resignations, and a few days after the prorogation 
the Governor, on the advice of his Ministers, appointed twelve new 
members. On 11th April Parliament was again called together, and 
the Enabling Bill was again passed by the Assembly and sent up to 
the Council. The hint was sufficient. Only one amendment was 
proposed, to require an interval of eight weeks before the referendum 
should be taken. This was agreed to by the Assembly, and on 22nd 
April the Bill was assented to. 

The Second Eeferendum. — The 20th June, 1899, was the day 
fixed for the Referendum, and the last great tight began at once. The 
federal campaign was organized by the United Federal Executive, 
formed of representatives from the non-party Australasian Federation 
League, from the New South Wales Federal Association, which had 
fought the last battle for the Bill, and from the Ministerial and 
Opposition parties in Parliament. On the other side, the Anti-Con- 
vention Bill League took up its old attitude. Of the Sydney daily 
press, the Telegraph was alone in its opposition ; the Sydney Morning 
Herald, the Evening News, and the Australian Star all worked zeal- 
ously for Federation. The Sydney Bulletin, which — when it has a 
positive policy — is a great power throughout Australia, concentrated 
its unrivalled wealth of ridicule against the opponents of the Bill, and 
the suburban and provincial press were almost unanimous on the same 
side. Of the 125 members of the Legislative Assembly, some 86 
supported the Bill with varying degrees of zeal ; and nine of the New 
South Wales representatives at the Convention worked earnestly for 
it — Mr. Lyne alone expressing himself still dissatisfied. 

With all these odds against them, the Anti-Bill party made a 
gallant fight. Their virtual leader was Dr. MacLaurin, whose 
criticism of the financial clauses undoubtedly made a deep impression ; 
whilst the rank and file of the party made onslaughts upon every 
joint in their opponents' armour, and devoted themselves especially 
to stir up jealousy in the metropolitan area. The great bulk of the 
Parliamentary Labour Party still yearned for the national referendum, 
and opposed the Bill consistently ; though at the polls the labour vote 
was fairly evenly divided. The heart of the controversy, however, 
was the financial argument, and the wiiole country seemed plunged 
into a bewildering maze of figures, devoted to proving — and disproving 
— that the Bill would involve oppressive and unfair taxation in New 
South Wales. Eight days before the vote a fillip was given to the 
cause by the passing, at last, of a Federal Enabling Bill in Queens- 



THE FEDERAL ISrOVEMENT TN AUSTRALIA. 



223 



land — the colony of which federalists and anti-federalists alike had 
always spoken as the " natural ally " of New South Wales. 

The result of the polling" was a decisive victory for Federation 
by a majority of 24,679 votes, the figures in the city, suburban, and 
country electorates being as follows : — 



Yes. 



No. 



City . . . 

Suburbs 

Country 



Total 



11,019 
24,475 
71,926 



10,546 
25,237 
46,958 



107,420 



82,741 



Taken by electorates, the vote shows 79 electorates for the Bill, 
and 46 against — or a majority of 33 for union. 

The Southern Colonies. — South Australia had passed the new 
Enabling Act in March, and seizing the opportunity afforded by a 
general election, had taken the vote upon the amended Bill on 29th 
April, when the verdict of the previous year was, without much 
excitement, reaffirmed by an even larger majority than before — the 
voting being 65,990 for Federation, and 17,053 against. 

Victoria and Tasmania, as soon as the verdict of New South 
Wales was known, passed Enabling Acts on the same lines, and fixed 
27th July, 1899, as Referendum Day. In Victoria, despite the weak- 
ness of the opposition, federalists determined to exhibit their strength, 
and aroused enthusiasm to such a pitch that a great muster of 152,653 
votes were recorded for the Bill, and only 9,805 against it. In 
Tasmania also the majority was increased, and the minority reduced, 
the figures being 13,437 for and only 791 against the Bill. 

Queensland. — The real interest now centred in Queensland. 
The Premier, Mr. Dickson, ably supported by his colleague, Mr. R. 
Philp, took up the cause with enthusiasm. The Enabling Bill, pro- 
viding for the submission of the amended Constitution to a referendum, 
and for its subsequent transmission, by address of both Houses, to the 
Home Government, was introduced in May. It was nearly wrecked 
at the outset by a proposition from the democratic party to adopt the 
principle of " one man one vote," without restriction, at the referen- 
dum. There was in Queensland a "plural vote" — electors being 
entitled to vote in every electorate in which they possessed property 
of an annual value of £10 — and there was also a considerable nomad 
population not registered as voters. It was urged that every man 
over the age of twenty-one should be allowed to vote wliether 
registered as a voter or not. This the Government were unable to 
accept, but they only gained their point, and saved the Bill, by one 
vote. They afterwards conciliated opposition by affording facilities 
for a revision of the rolls before referendum day. 

One difficulty to be faced was that Queensland — though it had 
been ably repi-esented at the 1891 Convention, whose work was the 



224 HISTORICAL INTRODUCTION. 

basis of the draft Constitution now presented — had, through the fault 
of its politicians, taken no part (except through its Premier, Mr. 
Dickson, at the Premiers' Conference) in the actual framing of the 
Constitution. A natural though belated desire was felt to have a 
voice in the details; and as the Constitution was appended as a 
schedule to the Enabling Bill they could, technically, make amend- 
ments in it. An attempt to do so was, however, thwarted by the 
leaders of all parties, who pointed out the futility of taking a vote on 
anything but the identical Constitution agreed to by the other colonies; 
and the Bill and the schedule were passed through both Houses with- 
out amendment, and became law on 19th June — the eve of the 
referendum in New South Wales. The vote was fixed for 2nd 
September, and the campaign began. 

But the friends of Federation had to face great difficulties. The 
question in Queensland was comparatively new, and the Constitution 
came definitely before the people for the first time. The forces of 
prejudice, ignorance, and suspicion, which in the other colonies had 
gradup^lly given way as a result of repeated federal campaigns, had to 
be met and beaten down at a single blow ; the principles of the Con- 
stitution, which in the other colonies had been expounded, analyzed, 
attacked and defended, discussed in public and in private, for two or 
three years, had to be brought home to the people in the space of a 
few weeks. The friends of the Bill worked zealously, and achieved 
wonders. It soon became clear that the North and the Centre were 
the federal strongholds — federal sentiment being there aided by the 
hope that the separation of those districts into distinct provinces, so 
long unsuccessfully contended for, would be easier after Federation. 
The one clause of the draft Constitution which aroused the fears of 
the Separatist federalists was clause 124, providing that a new State 
might be formed by separation of territory from a State, "but only 
with the consent of the Parliament thereof.'^ The Separatists were 
in a minority in the Queensland Parliament, and objected to the 
desires of an overwhelming majority in the North and Centre being 
thwarted by a majority in the South. 

In Brisbane and throughout the southern district the opposition 
to the Bill was very strong. Farmers, merchants, and manufacturers 
feared the competition of their New South Wales neighbours under a 
system of intercolonial f reetrade ; and — while the anti-federalists in 
New South Wales hailed Queensland as their "natural ally" against 
the southern colonies — the extreme anti-federalists of Queensland 
turned against New South Wales the epithets which their brethren in 
New South Wales had hurled against Victoria. Brisbane feared the 
competition of Sydney, just as Sydney had feared the competition of 
Melbourne; and federalists had a hard task in convincing their 
opponents that the benefits of free intercourse would vastly outweigh 
any sacrifice of intercolonial protection. 

In Queensland, therefore, the opposition was directed against a 
vital principle of Federation, and was undeniably anti-federal. The 
objection was not to this Constitution merely, but to any Federation 
worthy of the name. It was a war of vested interests and intercolonial 
protection against commercial unity. Minor issues were, of course, 



THE FEDERAL MOVEMENT IN AUSTRALIA. 



•225 



raised, and the "Anti-Bill" catchwords of the other colonies — however 
inapplicable — were caught up and scattered broadcast. The cry of 
" increased taxation through the customs,'^ and even the exact figures 
of " 22s. 6d. per head increased taxation," were copied from Xew 
South Wales manifestoes with calm indifference to the fact that these 
forecasts were based upon the existing tariff of Xew South Wales — 
which produced about 30s. per head less than that of Queensland. 
Equal representation in the Senate was, fi-om the Queensland point of 
view, a merit ; but it was largely discounted by the Money-Bill and 
deadlock clauses, which it was feared would lead to the undue 
supremacy of the larger colonies. 

The result of the vote was a victory for Federation by a substan- 
tial majority of 7,492 — the figures being 38,488 for the Bill, and 
30,996 against. In the Northern district there was an overwhelming 
federalist majority of 8,993, every electorate showing a majority for 
the Bill. In the Centre, there was a majority of 2,156, eight elector- 
ates being favourable, and three unfavourable. Rockhampton, the 
capital of the centre, polled against the Bill — a result due, not to 
antagonism to Federation, but to a Separatist fear of clause 124. The 
Centre and Xorth thus gave a combined federal majority of 11,149; 
but this was unfortunately reduced by an anti-federal majority of 3,657 
in the South — the metropolitan electorates being all against the Bill, 
and the rest of the Southern district polling slightly in its favour. 

The Total Results. — The voting in the five colonies whose 
electors had accepted the draft Constitution was as follows : — 





New South 
Wales. 


Victoria. 


Au's?^V 1 T— i- 


Queensland. 


Total. 


Yes 
Xo 


107,420 

82,741 


152,653 

9,805 


65,990 ! 13,437 ' 38,488 
17,053 I 791 j 30,996 


377,988 
141,386 


Majority ... 


24,679 


142,848 


48,937 12,646 7,492 


236,602 



These figures are a striking proof of the extent and sincerity of the 
national sentiment throughout the whole of Eastern Australia ; and 
they are also a unique testimony to the high political capacity of the 
Australian people. Never before have a gi'oup of self-governing, 
practically independent communities, without external pressure or 
foreign complications of any kind, deliberately chosen of their own 
free will to put aside their provincial jealousies and come together as 
one people, from a simple intellectual and sentimental conviction of 
the folly of disunion and the advantages of nationhood. The States 
of America, of Switzerland, of Germany, were drawn together under 
the shadow of war. Even the Canadian provinces were forced to unite 
by the neighbourhood of a great foreign power. But the Australian 
Commonwealth, the fifth great Federation of the world, came into 
voluntary being through a deep conviction of national unity. We 
may well be proud of the statesmen who constructed a Constitution 

15 



226 HISTORICAL INTRODUCTION. 

which — whatever may be its faults and its shortcomings — has proved 
acceptable to a large majority of the people of five great communities 
scattered over a continent ; and proud of a people who, without the 
compulsion of war or the fear of conquest, have succeeded in agreeing 
upon the terms of a binding and indissoluble Social Compact. 

The Addresses to the Queen. — The last step towards the 
acceptance of the draft Constitution by the five colonies was taken by 
the Legislatures in passing Addresses to the Queen praying that the 
Constitution should be passed into law by the Imperial Parliament. 
In the three southern colonies — Victoria, South Australia, and Tas- 
mania — this proceeding, after the emphatic vote of the electors, was 
little more than a matter of form ; and during the month of August 
both Houses of Parliament in each of those colonies adopted the 
Addresses without opposition and amid general congratulations. 

In New South Wales there was a show of opposition, but only by 
a few of the most irreconcilable critics. Many of those who had 
opposed the Bill had been influenced by misgivings rather than by 
real hostility, and accepted the verdict of the people loyally. The 
Address was debated at length in the Assembly, but an amendment 
purporting to inform the Queen that 82,000 of her loyal and dutiful 
subjects had voted against the Bill, and that "such vote was not a 
declaration against Federation, but against the adoption of any Con- 
stitution which could not be amended by a majority of the Australian 
people/^ was defeated by 75 votes to 22, and the Address was then 
passed on the voices. In the Council the opposition was stronger. 
An amendment, moved by Mr. C. G. Heydon, to declare that if the 
Parliament did not meet at the Seat of Government within four years, 
it should sit in alternate years at Sydney and Melbourne, was prompted 
by the fear that the sittings of the Parliament at Melbourne might 
become permanent. Federalists recognized, however, that it was 
impossible to re-open the terms of union at this stage, and the amend- 
was defeated by a narrow majority of four. On 17th August the 
Address itself was carried, after several nights' debate, by 24 votes 
to 21. 

In the Queensland Assembly the verdict of the people was also 
loyally accepted, and the Address was passed, on 4th August, by 57 
votes to 9. In the Council, an amendment was moved to declare that 
the Bill had been carried by majorities in the Centre and North only ; 
but this eifort to elevate sectional differences over the decision of the 
whole colony failed, and the Address was passed by 16 votes to 9. 

Western Australia. — At the close of the Convention, Sir John 
Forrest had seemed prepared to recommend Western Australia to 
adopt the Constitution as it stood ; but his attitude subsequently 
became less favourable. At the Premiers' Conference, 1899, it is 
understood that he asked, unsuccessfully, for certain concessions. In 
July, 1899, after the second referendum in New South Wales, the 
Constitution was for the first time submitted to the Parliament of 
Western Australia, and was referred to a Select Committee of the 
Legislative Assembly. On 19th September the Committee brought up 
its report, declaring its opinion that before Western Australia could 
safely join the Commonwealth, four amendments were necessary : — 



THE FEDERAL MOVEMENT TN AUSTRALIA. 227 



(L) Enabling the colony to be divided into electorates for the 

election of Senators ; 
(2.) Empowering the Federal Parliament to authorize the con- 
struction of a transcontinental railway ; 
(3.) Allowing Western Australia, for five years after the adoption 
of a federal tarifp, to impose her own customs duties on 
intercolonial and other imports ; 
(4.) Exempting Western Australia, for the same period, from the 

jurisdiction of the Inter-State Commission. 
The object of the second of these amendments was to dispense 
with the necessity of the consent of South Australia (under sec. 51 — 
xxxiv.) to the selection of the route and the construction of the line 
within that colony. The five years' control of the tariff was for the 
double purpose of securing the revenue Aecessities of the colony and 
affording temporary protection to the West Australian farmers, and 
other producers of foodstuffs. 

On the consideration of this report in the Legislative Assembly, 
the Government proposed to submit to the electors both the Bill as 
adopted by the Premiers^ Conference and the Bill with the West 
Australian amendments. This was stoutly opposed by federalists, 
who were confident that there was an overwhelming majority of the 
population, especially on the goldfields, in favour of tbe Bill as it 
stood, and that the proposed alternative ballot would confuse the 
issue. In Parliament, however, the goldfields were very scantily 
represented as compared with the settled districts; and though Mr. 
Leake moved an amendment that the Bill as adopted by tbe Premiers' 
Conference should alone be referred to the people, the Government 
proposal was carried by the House. 

In the Council the proceedings were hopelessly tangled. First a 
proposal by Mr. Matheson, that the Bill as adopted by the other 
colonies should be referred to the people, was negatived. Then a 
proposal by Mr. Whitcombe, that it was undesirable at present to 
submit the question of Federation to the people at all, was also 
rejected. The Government's proposal to submit both Bills met with 
the same fate ; and finally a proposal by Mr. Hackett, to submit only 
the Bill with the Committee's amendments, was also lost. The result 
was that the submission of the Bill to the people was blocked 
altogether. The federalists raised the cry that the whole fiasco had 
been planned by the Government ; and an agitation was promptly 
started on the goldfields for separation from Western Australia, 
under the power reserved by the Queen in the Constitution of the 
colony. 

In January, 1900, Sir John Forrest, with a view to securing 
assent to his amendments, visited the eastern colonies and attended a 
Conference of Premiers at Sydney. He finally gave up three of the 
West Australian amendments, but stood tirm on the five years' liberty 
to impose intercolonial customs duties. Had the matter been still in 
the stage of negotiation, this might have been granted; but the 
diflBculty was that the Constitution was now a compact upon which 
the people of the accepting colonies had set the seal of their approval. 



228 HISTORICAL INTRODUCTION. 

and whose alteration the Governments of those colonies were unable 
to countenance. 

New Zealand, — New Zealand^ alone of the seven Australasian 
colonies^ had, since the Convention of 1891, taken no part in the 
process of framing the Federal Constitution. Following the example 
of 1891, New Zealand is mentioned in covering clause 6 as a 
possible " State/' but as yet she has taken no steps to adopt the 
Constitution. This does not mean that New Zealand is without 
interest in Australian Federation. The progress of the movement 
has been watched by that colony with keen attention ; and a sub- 
stantial section of public opinion favours the adoption of the Con- 
stitution. In July, 1899, a Federation League was formed in Auck- 
land; and though the question of Federation has not risen to the 
magnitude of a party issue, it has been much discussed by politicians, 
by the press, and by the people. For the most part, however, 
Federation is in New Zealand not so much a national as a commercial 
question. Her geographical isolation from Australia by 1,200 miles 
of sea is a factor which cannot be neglected, though it may be 
exaggerated. At the same time, her commercial and other relations 
with Australia are most important ; her interests, as regards defence 
and external affairs, are largely identical ; and the alternatives either 
of union or of a reciprocal commercial arrangement with the Com- 
monwealth are pressing themselves upon the attention of the people 
of New Zealand. 



(18) ENACTMENT OF THE CONSTITUTION, 1900. 



On 22nd December, 1899, Mr. Joseph Chamberlain, Secretary of 
State for the Colonies, in a telegraphic despatch to Earl Beauchamp, 
Governor of New South Wales, expressed a hope that a delegation 
from the federating colonies would visit England and be present 
when the Commonwealth Bill was submitted to the Imperial Parlia- 
ment. This invitation was considered at a Conference of Premiers 
held at Sydney from 24th to 27th January ; and it was arranged that 
a delegation should be sent, consisting of Mr. Edmund Barton 
(N.S.W.), Mr. Alfred Deakin (Victoria), Mr. J. R. Dickson (Queens- 
land), Mr. C. C. Kingston (S.A.), and that they should be joined in 
London by Sir Philip O. Fysh (Tasmania). It was agreed that the 
delegation should represent all the federating colonies in unitedly 
urging the passage of the Bill through the Imperial Parliament 
without amendment, and in explaining any legal or constitutional 
questions that might arise. The Government of Western Australia 
also expressed a desire to be represented, and, with the concurrence 
of the Secretary of State, despatched Mr. S. H. Parker, Q.C., as a 
Delegate from that colony. 

Imperial Criticisms. — Towai-ds the middle of March, 1900, the 
Australian Delegates arrived in London. Mr. Barton was appointed 
their spokesman; and on 15th March they had their first 
informal conference with the Secretary of State for the Colonies and 



THE FEDERAL MOVE^IENT IX AUSTRALIA. 229 

the Crown Law Officers. Mr. Chamberlain having welcomed the 
Delegates, Sir Richard Webster, Q.C., Attorney-General, indicated 
the provisions of the Bill which the Crown Law Officers thought 
required discussion and explanation, and perhaps amendment. The 
chief objection made was to clause 74, as restricting the right of 
appeal to the Privy Council. 

It was evident from the outset that, whilst the Delegates were 
anxious to secure the passage of the Bill without amendment, the 
Imperial Government were equally anxious to amend certain pro- 
visions which seemed to them to affect Imperial interests. The only 
way in which the Imperial Government had been heard in connection 
with the framing of the Bill was in consultation with the Australian 
Premiei-s at London at the Diamond Jubilee celebrations in 1897, 
when certain criticisms had been made on the Bill as drafted at 
Adelaide. Mr. Chamberlain had subsequently sent Mr. Reid a 
confidential memorandum of the criticism of the Crown Law Officers, 
which included an objection to the almost total abolition of Privy 
Council appeals, as proposed in the Adelaide draft. (See Extract from 
this memorandum. Pari. Papers, May, 1900.) This memorandum 
had been handed by Mr. Reid to the Drafting Committee, and 
had led to several amendments being made, and particularly to a 
considerable modification of the clause relating to Privy Council 
appeals. The Crown Law Officers, however, were not satisfied with 
the new clause, and had also some new criticisms to offer. 

A memorandum of the amendments suggested by the Crown 
Law Office was afterwards handed to the Delegates. (House of Com. 
Pap., May, 1900, p. 19.) These amendments, only five in number, 
were wholly confined to the covering clauses of the Bill. (1) As 
regards Privy Council appeals, it was proposed to modify the effect 
of clause 74 by adding to covering clause 5 a declaration that 
nothing in the Act or the Constitution should affect any prerogative 
of the Crown to grant special leave of appeal to Her Majesty in 
Council. (2) In covering clause 2, the words " This Act shall bind 
the Crown ^' were proposed to be omitted, as involving an unnecessary 
interference with the prerogative. (3) In covering clause 5, the 
provision that the laws of the Commonwealth should be in force on 
British ships plying between ports of the Commonwealth was pro- 
posed to be omitted as being too wide and involving a possible 
conflict of jurisdiction ; whilst it was thought that all necessary 
powers of legislation in respect of the coasting trade were given by 
sec. 736 of the Merchant Shipping Act, 1894 (see p. 50, siipra). (4) 
It was proposed to declare, in covering clause 5, that the laws of the 
Commonwealth were " colonial laws " within the meaning of the 
Colonial Laws Validity Act, 1865 (28 and 29 Vic. c. 63). A conten- 
tion had been raised in Canada that this Act was not fully applicable 
to laws of the Dominion (see Lefroy, Legisl. Power in Canada, 
PP- -^^-8) ; and the Crown Law Officers feared that in Australia a 
similar contention might derive some support from the definition of 
" colony " in covering clause 6. (5) It was proposed that the Con- 
stitution, instead of being appended to covering clause 9, should be 
placed as a schedule to tiie Act. 



230 HISTORICAL INTRODUCTION. 

Memorandum of the Delegates. — Preliminary to a further inter- 
view with the Secretary of State for the Colonies, the Delegates 
forwarded to him a Memorandum, dated 23rd March, of their reasons 
for urging the passage of the Bill in the form in which it had been 
affirmed by the people. (House of Com. Pap., May, 1900, p. 
13). In defending the provisions proposed to be altered, they care- 
fully guarded themselves against even appearing to acquiesce in the 
suggestion that any amendment was necessary. They called attention 
to the recital in the preamble that the people of the federating 
colonies had agreed to unite in a federal Commonwealth " under the 
Constitution hereby established ; " and argued that this recital would 
not be justified if the Constitution were in any way altered. 

In answer to a question whether, if alterations were made, it was 
preferable that they should be placed in the covering clauses rather 
than in the Constitution itself, the Delegates replied that though this 
would, in appearance, be the less objectionable method, yet any 
amendment in the covering clauses which altered the meaning of the 
Constitution would be in effect an alteration of the Constitution, and 
would therefore be equally objectionable. 

They then dealt categorically with the specific amendments 
foreshadowed by the Crown Law Officers. As regards the application 
of the Colonial Laws Validity Act, they thought that the meaning of 
the Bill was clear without the proposed amendment, and that the 
definition of " colony " in covering clause 6, which had been framed 
simply for the purpose of clearly including South Australia in the 
Bill, could not exclude the definition of " colony " in the Colonial 
Laws Validity Act from applying to the Commonwealth. In support 
of this view, they cited the definition of " colony " in the (Imperial) 
Interpretation Act, 1889 (52 and 53 Vic. c. 63). And they hinted that, 
if the Imperial Government thought that any doubt was raised by 
the definition in the Bill, it would be better to omit the definition, as 
being unnecessary, than introduce new matter. 

With regard to the proposed omission of the provision relating 
to British ships, they pointed out that the provision was much more 
restricted than that inserted, at the instance of the Imperial Govern- 
ment, in the Federal Council Act of 1885. If the contention were 
correct that the matter was sufficiently provided for by the Merchant 
Shipping Act, 1894, the phrase objected to was at the worst a harmless 
redundancy. But the expression " coasting trade " in that Act was 
not defined, and might be taken to include only the trade of vessels 
plying within the " three-mile " territorial limits. Moreover, the 
provision removed a further anomaly by protecting a vessel which 
passes from the territorial waters of one colony into those of another 
from being subjected to a change of laws, and by applying the 
uniform laws of the Commonwealth during the whole passage from 
one port of the Commonwealth to another. The power, though larger 
than that conceded by the Merchant Shipping Act, was larger only 
for the most beneficial purposes. 

To the amendment relating to Privy Council appeals they objected 
as substantially altering, and in great part nullifying, clause 74 of the 
Constitution. They entered into an elaborate defence of clause 74, 
pointing out that it was not as far-reaching as was supposed in some 



A 



THE FEDERAL MOVEMENT IN AUSTRALIA. 231 



quarters, and jastifying the demand for the finality of the judgments 
of the High Court, in constitutional eases, by the argument that if 
the Australians were fit to make a Constitution for themselves they 
were fit also to interpret that Constitution. The concluding sentence 
of the clause, giving the Federal Parliament power to limit the right 
of appeal, only conferred on the Commonwealth (they argued) a right 
to do what each State could do at present, subject to the reservation 
of the Bill as affecting the prerogative ; and they referred to the 
Instructions to Australian Governors, dated July, 1892, clause viii., 
par. 7 (see note, § 56, infra) as showing that the framers of the 
Instructions considered that the colonies had full legislative powers in 
matters affecting the prerogative, subject to reservation for the royal 
assent. The last sentence of the clause, therefore, seemed only to 
<:onfer on the Commonwealth a legislative power which had long been 
possessed by each of the States. They asked the Imperial Govern- 
ment to consider whether clause 74 was of such a nature as to justify 
alarm, and whether it was worth while to incur the risk of serious 
dissatisfaction in Australia for the sake of preserving the small degree 
of prerogative affected. 

They referred to the generous attitude taken by the Imperial 
Government in respect of the Federal Council Bill in 1885, when it 
had been recognized that it would be inexpedient to make any 
unavoidable alterations in the draft submitted from Australia; and 
they concluded with an eloquent appeal to the mother-country to place 
in the hands of the Australian colonies the trust for which they asked. 
This memorandum was signed by the Delegates of the five federating 
colonies. 

Mr. Haldaxe's Proposal. — At this stage a new element was 
introduced into the appeal question by a proposal from Mr. R. B. 
Haldane, Q.C., M.P. Mr. Haldane, in an article in the March number 
of the Juridical Review, dwelt on the confidence felt in the Privy 
Council by all parts of the Empire, and the valuable work it had done 
in reviewing the decisions of the High Court of Canada, and giving a 
liberal interpretation to the powers of the provinces as defined in the 
British North America Act. The Commonwealth Bill, however, pro- 
posed to restrict this right of appeal, and he contended that this could 
only be averted "by making our Australasian colonies feel that we 
offer them the finest court of ultimate appeal that the Empire can 
produce." He proposed that the three colonial members of the Privy 
Council should be made life peers, and that this step should be 
followed by the fusion of the Judicial Committee of the Privy Council 
with the House of Lords in its judicial capacity. There would then 
be one great Imperial tribunal, and the anomaly of having one court 
of final appeal for the United Kingdom, and another for the depen- 
dencies, would be removed. 

Mr. Haldane's suggestion attracted much notice in the press, and 
was regarded with favour by the Imperial Government and the Crown 
Law officers. 

MEM0RA>fDUii OP Imperial Objections. — In answer to the Memo- 
randum of the Delegates, the Imperial Government prepared a Memo- 
randum, dated 29th March, setting forth their objections to some 



232 HISTORICAL INTRODUCTION. 

provisions of the Bill. (House of Com. Pap., May 1900, p. 22.) It 
stated that tliey were most anxious for the speedy passage of the Bill 
in a form which would give the Australian colonies the Federation 
which they desired ; but, at the same time, it was their bounden duty 
to protect the interests of the United Kingdom and the rest of the 
Empire. The points of difference were few, and involved a minimum 
of alteration. They observed that the Memorandum of the Delegates 
abstained from discussing any of the proposed alterations on their 
merits, and consisted almost wholly of an appeal to the Government 
to accept the Bill unaltered, as embodying the wishes of the Austra- 
lian people. They felt it their duty to place on record some of the 
reasons which made it impossible for them to accede to this request. 

In the first place, they contended that the distinction, which the 
Delegates now refused to recognize, between the " covering clauses " 
and the Constitution, had been clearly recognized in the debates of 
the Convention, and that the Enabling Acts showed that the agree- 
ment at which the people of the colonies had arrived related to the 
" Constitution " only and not to the covering clauses. 

As to the application of the Colonial Laws Validity Act, they 
cited a suggestion by Mr. R. E. O'Connor (Conv. Deb., Syd., p. 252) 
that the Act would not apply to the laws of the Commonwealth. They 
contended that doubts arose, not only from covering clause 6, but also 
from sub-sections xxix. and xxxviii. of section 51 ; and they added 
that "in the absence of any definition or limitation of the privi- 
lege claimed by these provisions of the Constitution, Her Majesty's 
Government would fail in their duty if they left any room for doubt 
as to the paramount authority of Imperial legislation." 

As to the enforcement of the laws of the Commonwealth on 
British ships trading between ports of the Commonwealth, they said 
that the provision in the Federal Council Act, relied on by the 
Delegates, was unduly wide. They contended that the power to 
control the coasting trade, given by sec. 736 of the Merchant Shipping 
Act, 1894, was not confined to territorial waters, and that the words 
"first port of clearance" and "port of destination" were not free 
from ambiguity. 

As to Privy Council appeals, they thought there would be 
uncertainty as to the definition of " matters involving the interpreta- 
tion of the Constitution" and "public interests." They objected to 
the powers given to the Federal Parliament to limit the prerogative, 
and urged that the establishment of two final courts of appeal would 
introduce confusion and uncertainty. The clause seemed to have 
originated, to some extent, in objections to the present constitution 
and working of the Judicial Committee — which however had, on the 
■whole, commanded the confidence of the Empire. But the time was 
specially inopportune to curtail its jurisdiction. Proposals were 
under consideration for securing a permanent and effective represen- 
tation of the colonies on the Judicial Committee, and for amalgamating 
the Judicial Committee with the House of Lords, so as to constitute a 
Court of Appeal from the whole British Empire. It would be unfor- 
tunate if Australia should choose this moment to take from the 
Imperial tribunal the determination of the class of cases of greatest 

I 



THE FEDERAL MOVEMENT TN AUSTRALIA. 233 

importance and often of greatest difficulty. They stated at some 
length the arguments against the contention for the finality of judg- 
ments of the High Court, and concluded by saying : — " The reten- 
tion of the prerogative to allow an appeal to Her Majesty in 
Council would accomplish the great desire of Her Majesty's subjects 
both in England and Australia, that the bonds which now unite them 
may be strengthened rather than severed, and, by ensuring uniform 
interpretation of the law throughout the Empire, facilitate that unity 
of action for the common interests which will lead to a real Federation 
of the Empire. The object of everyone at present should be to draw 
closer together all parts of the Empire. The existence of the right 
of appeal, subject to the leave of the Privy Council, has been a link 
effectively binding together every part of Her Majesty's dominions; 
the weakening of this tie would seriously lessen the value of even so 
great and beneficent a result as the Federation of Australia. If the 
Bill were passed in its present form, while it would mark a step in 
advance as far as the Federation of Australia is concerned, it would 
be a retrograde measure so far as it affects the larger question of 
Imperial Federation." 

New Zealand. — On 27th March, Mr. W. P. Reeves, the Agent- 
General for New Zealand, informed the Colonial Office that he had been 
appointed a Delegate for that colony ; and on 30th March he forwarded 
to the Colonial Office a Memorandum of certain amendments desired 
by New Zealand. (House of Com. Pap., May 1900, p. 29.) These 
amendments, three in number, were in effect : — 

(1.) That New Zealand should preserve the right of joining the 
Commonwealth at any time, or within a specified time, on 
the same terms as the Original States. 
(2.) That while New Zealand remains outside the Commonwealth, 
litigants in her Higher Courts, though reserving the right 
of appeal to the Privy Council, should have an alternative 
right of appeal to the High Court. 
(3.) That the Commonwealth and New Zealand should be 
empowered to make the necessary arrangements for joint 
naval and military defence, including operations outside 
their own boundaries, and for that purpose to form a 
homogeneous Australasian force. 
In support of the first amendment — the request for an '^open 
door" — Mr. Reeves urged that New Zealand, on account of her 
geographical distance and her peculiar circumstances, ought to be 
given a longer time to make up her mind than had been necessary in 
the case of contiguous colonies. Though New Zealand was linked to 
Australia by bonds of intercourse, friendship, and sympathy, she had 
also vital and separate interests. She had watched the federal move- 
ment with caution and reserve, and her decision needed prudent 
deliberation. To forestall a possible objection that his demands came 
too late, Mr. Reeves said that New Zealand had been unable to judge of 
the intentions of the Australian colonies until they had accepted the 
Commonwealth Bill; and as the leading statesmen of Australia, in 
response to a request by the Premier of Western Australia, had 



234 HISTORICAL INTRODUCTION. 

refused to consider any further amendments, the only course open to 
Xew Zealand was that now taken. 

Western Australia. — On the same day Mr. S. H. Parker, the 
Delegate for Western Australia, forwarded to the Colonial Office a 
Memorandum of the amendment asked for by that colony. (House 
of Com. Pap., May, 1900, p. 31). Following the recommendation of 
the West Australian Select Committee (p. 226 supra) he asked that 
clause 95 should be struck out, and a clause substituted empowering 
Western Australia, for five years after the imposition of the Federal 
tariff, to receive the same customs duties as were in force at the 
passing of the Commonwealth Act, such duties to be collected by the 
Commonwealth. He announced that if this amendment were made, 
the Government of Western Australia would immediately summon 
Parliament in order to pass an Act to refer the Commonwealth Bill to 
the people, and would use their utmost endeavours to secure its 
acceptance. 

Conference at the Colonial Office. — On 5th April there was a 
Conference at the Colonial Office, at which Mr. Chamberlain presided, 
and the Delegates from all the seven colonies were present (House 
of Com. Pap., May, 1900, p. 35). Mr. Chamberlain first asked Mr. 
Parker and Mr. Reeves to say anything which they might wish to 
add to their respective Memoranda. Mr. Parker urged that the 
sliding scale in the Bill, by which the intercolonial duties of Western 
Australia would be annually reduced by one-fifth, was not a sufficient 
protection for infant industries, and particularly for agriculture, and 
that an annual alteration of duties would greatly injure and disturb 
trade. If the Bill were to be amended at all by the Imperial Legis- 
lature, he did not see why the West Australian amendment should 
not be introduced. The argument against the amendment was that a 
further referendum would be necessary ; and if there must be a 
referendum there was an opportunity for this amendment. Questioned 
by Mr. Chamberlain, he admitted that a referendum would cause some 
delay, and that he could not ask for the amendment if it alone 
necessitated a referendum. He also urged that if his amendment 
were accepted, a further amendment would be necessary to enable 
Western Australia, within a certain time, to be admitted as an 
Original State. Cross-examined by Mr. Kingston, he admitted that 
there was a strong feeling on the goldfields in favour of accepting the 
Bill without amendment, but maintained that the majority of the pro- 
ducing population were against it. He could not form an opinion 
whether the Bill if referred to the people would be accepted. 

Mr. Reeves expanded the arguments of his Memorandum, and 
said that while the attitude of New Zealand was one of " cautious 
examination," the feeling in favour of Federation was growing. 
Asked by Mr. Chamberlain whether two of his suggestions — namely, 
the appeal to the High Court and the arrangements for mutual 
defence — were not rather a matter for subsequent agreement with 
the Commonwealth than for amendment of the Bill, he merely pointed 
to other special provisions in the Bill relating to particular colonies. 
He suggested seven years as the time during which the "open door" 
should be allowed to New Zealand. As to the question of delay, he 



THE FEDERAL MOVEMENT IN AUSTRALIA. 235 

agreed with Mr. Parker that if the Bill were to be amended at all 
these amendments could be put in. 

From remarks made by Mr. Chamberlain, it appears that though 
some amendment of the covering clauses was contemplated bj the 
Imperial Government, no decision had then been come to whether 
any amendment would be made in the Constitution itself. 

Mr. Parker and Mr. Reeves then withdrew, and the remainder of 
the Conference was devoted to discussing, with the Delegates of the 
five federating colonies, the different points at issue. The Delegates 
seem to have understood that the amendments relating to the Colonial 
Laws Validity Act and to British ships would be abandoned. 

At midnight, Mr. Chamberlain despatched to the Governors of 
the five colonies a telegram announcing the result of the Conference. 
He disclaimed any intention to interfere in interests exclusively 
Australian, but was confident that the Ministers of the colonies 
would give full weight to the suggestions of the Imperial Govern- 
ment when urged on behalf of the United Kingdom, or as Trustees 
for the Empire at large. The Imperial Government would have 
desired amendment as to various questions which had arisen, but were 
unwilling to risk delaying Federation by pressing their views ; and 
the operation of clause 74, in restricting the right of appeal to the 
Privy Council, was now practically the only matter in issue. The 
Imperial objections to the clause were set out substantially as 
follows : — 

(1.) The term "public interests "is vague, and would lead to 

increased litigation. 
(2.) A most important link of Empire would be seriously im- 
paired, and the consequences would be far-reaching in 
allowing divergency to spring up where uniformity is 
most desirable. 
(3.) In the interests of Australia, the final decision in important 
questions as to boundaries of Federal and State powers 
should lie with the highest court of the Empire, beyond 
suspicion of local bias. 
(4.) Important questions as to the operation of Commonwealth 
laws on British shipping, or generally as to whether such 
laws are ultra vires, can hardly be allowed to be concluded 
by the High Court. 
(5.) Commonwealth laws on fisheries, &c., may seriously affect 

the interests of other parts of the Empire. 
(6.) Banks and other institutions having large interests in Aus- 
tralia are strongly against the limitation, and weighty 
representations on the subject have been made to the 
Imperial Government. 
(7.) The actual restriction, and the power claimed to make 
further restriction, equivalent to practical abolition of 
appeal, are specially inopportune when a Bill is under 
consideration for enhancing the dignity and efficiency of 
the Judicial Committee by practically amalgamating it 
with the House of Lords, and providing for the adequate 
and permanent representation of the great colonies in a, 
new court. 



236 HISTORICAL INTRODUCTION. 

For these and other reasons tlie Imperial Government felt that 
they must press for the amendment of clause 74, but they wished to 
effect the amendment in the way most agreeable to Australian senti- 
ment, and so as to avoid if possible the delay and expense of a 
further referendum. Several suggestions had been made, but the 
Delegates' lack of instructions prevented their discussing the form of 
the proposed amendment. 

The only other amendment alluded to was the declaration that 
the Colonial Laws Validity Act applied to Acts of the Commonwealth 
— a declaration which the Imperial Government still regarded as 
necessary. Mr. Chamberlain earnestly appealed to the colonial 
governments to co-operate with him in securing the unopposed passage 
of a Bill which, while accepting the draft Constitution practically in 
its entirety, would take account of the above considerations ; and he 
trusted that they would enlarge the instructions to their Delegates, 
and authorize them to arrange with the Imperial Government the 
speediest and best method of securing these objects. 

On the same date Mr. Chamberlain telegraphed to the Governors 
asking whether their Ministers would consent to the amendment 
desired by Western Australia being inserted in the covering clauses. 

Premiers' Conference. — On receipt of these telegrams the five 
Australian Governments decided to hold a conference of Premiers to 
discuss the position. Meanwhile, on 16th April, Mr. Chamberlain 
sent a further telegram stating that whilst he would be glad to learn 
that the Premiers concurred in his policy of amending the Bill, what 
he immediately desired was that the Delegates should be authorized 
to consult with the Imperial Government as to the best means of 
effecting the alterations, especially with a view to avoiding, if possible, 
a further referendum. The responsibility would rest with the Imperial 
Government, but they were anxious to avail themselves of the assist- 
ance of the Delegates. On 17th April Mr. Chamberlain, at the request 
of Mr. Reeves, sent a telegram inviting consideration of the New 
Zealand request for an " open door " for seven years. If the Premiers 
approved, he would be prepared to consider the amendment, otherwise 
he would not be justified in making it. 

The Premiers' Conference sat at Melbourne from 19th to 21st 
April. Neither Mr. Philp, for Queensland, nor Mr. Lewis, for 
Tasmania, were averse to the alteration of clause 74 ; but ultimately 
the following resolution was asfreed to : — 

" The Premiers of New South Wales, Victoria, Queensland, 
South Australia, and Tasmania, in conference assembled, having 
given full consideration to the despatches from the Secretary of State 
for the Colonies respecting suggested amendments in the Common- 
wealth Bill, reply : — 

" (1.) While they fully recognize the feeling of the Imperial 
Government that vigilance on their part is essential in the interests of 
all parts of the Empire, and also the importance of securing the 
inclusion of Western Australia in the Federation from the first, they 
cannot forget that by the enabling Acts and in pursuance of them (a) 
the framing of the Federal Constitution was expressly entrusted to 
the Convention of Representatives, specially elected by the people for 



THE FEDERAL MOVEMENT IN AUSTRALIA. 237 

the purpose, in all the Colonies, except Queensland and "Western 
Australia, and that the final acceptance or rejection of the Constitution 
when framed was also remitted to the people ; (6) the question as to 
appeals was, inter alia, considered by the Convention in Adelaide, 
and no appeal to the Privy Council was allowed. During the visit of 
the Premiers to England at the Jubilee the matter was referred to by 
the Secretary of State for the Colonies, who urged reconsideration. 
It was accordingly reconsidered at the meeting of the Convention in 
Melbourne, and resolved in the opposite direction to the decision in 
Adelaide. Later, the matter was again discussed, and the compromise 
now in the Bill agreed to. It was yet again debated in the Premiers' 
Conference prior to the last referendum, and no alteration was made 
in the form of the Bill. The vote was then taken and the Bill was 
adopted by a large majority of the electors; (c) the Commonwealth 
Bill belongs therefore in a very special sense to the people of Aus- 
tralia, whose only mandate to Governments and Parliaments is to seek 
its enactment by the Imperial Parliament in the form in which it was 
adopted by the people. 

" (2.) The Premiers believe that the Appeal Clause, as framed, 
could not work injuriously to any part of the Empire, although the 
proposed new Court of Appeal for the Empire would doubtless present 
attractions to the people of Australia. 

" (3.) The only alternatives suggested in the despatches are : — 
(1) Amendment of the Bill and (2) postponement of its consideration. 
Of these two the Premiers do not hesitate to say that the latter 
course would be much more objectionable to Australians generally 
even than the former. 

" (4.) Without disputing the constitutional power of the Imperial 
Parliament to amend the Bill on its own responsibility, the Premiers 
respectfully urge that the voice of the Australian people given on the 
Bill as it stands should receive that favourable consideration which 
such a weighty referendum demands. The Premiers do not consider 
themselves as having authority to accept any amendments. They 
hope that the colony of Western Australia, whose representatives 
assisted lo frame the Bill and in the Convention almost unanimously 
agreed to clause 95, may be urged to accept it as it stands. They 
think that the Bill already sufficiently provides for the admission of 
New Zealand." 

Westekx Australia and New Zealand. — On 27th April, Mr. 
Chamberlain telegraphed to Sir A. C. Onslow, the Acting-Governor 
of Western Austi-alia, that the Premiers had declared that they 
had no authority to accept amendments, and had given their Delegates 
no fresh instructions. He therefore could not press the matter 
further, and now urged West Australian Ministers to consider whether 
they should not, in the best interests of that colony as well as of 
Australia, make a resolute effort to bring the colonv into Federation 
at once. Western Australia, unless she joined as an Original State, 
could only enter later on condition of complete intercolonial freetrade, 
and would thus lose the temporary protection of clause 95 ; whilst, in 
view of her present population, she might find it difficult to secure 
such large representation in the Federal Parliament as she would get 



238 HISTORICAL INTRODUCTION. 

as an Original State. He also asked them to consider the effect of the 
agitation of the Federalist party, especially in the goldfields, if the 
colony did not enter as an Oi'iginal State. He thought it of the 
utmost importance to the future of Western Australia that she should 
join at once, and he urged that they should immediately summon Par- 
liament and take steps for ascertaining the wishes of the people. If 
they agreed to this course, a clause would be inserted in the Bill 
providing that, if the people intimated, before the issue of the 
Queen^s proclamation, a desire to be included. Western Australia 
might join as an Original State. 

To this the Acting-Governor replied, on 2nd May, that Parlia- 
ment had been summoned for 17th May, when an Enabling Bill would 
be introduced by the Premier providing for the immediate submission 
of the Commonwealth Bill to the people. 

On 28th April the Colonial Office informed Mr. Peeves that the 
Premiers at the Melbourne Conference had decided that they had no 
authority to accept any amendments, and considered that the Bill 
already provided sufficiently for the admission of New Zealand. 
Under these circumstances he did not feel justified in further pressing 
for amendments in regard to a question which appeared to be one to 
be settled by the Australian colonies without Imperial interference. 

The Delegates' Second Memorandum. — In some quarters, the 
Premiers' resolution was viewed as an ''invitation" to the Imperial 
Grovernment to amend the Bill. The Delegates of the federating 
colonies — except Queensland — made haste to correct this impression. 
They addressed a second Memorandum to the Colonial Office, dated 
27th April. (House of Com. Pap., May, 1900, p. 65.) They said that 
the one remaining amendment suggested by the Imperial Govei^nment 
had been fully considered by the Premiers in Conference. As the 
Premiers had been unable to accept it, or to withdi-aw, enlarge, or 
modify the instructions to the Delegates, it continued to be the 
common duty of the Delegates — each of whom was appointed to 
represent all the colonies — to press for the speedy passage of the Bill, 
as prepared by the instructions, and endorsed by the votes, of the 
Australian people. In firmly preferring this request with all possible 
respect, they deemed it desirable to offer some comment on the 
Colonial Office Memorandum of 29th March. 

The substantial issue which they again pressed upon the attention 
of Her Majesty's Government was that the Bill as prepared was an 
Australian Constitution in a double sense — Australian not only in 
origin, but by the deliberate endorsement of Parliaments and peoples. 
Any amendment, not both absolutely essential and incapable of 
achievement by any other means and at any other time, was to be 
deprecated as destroying the character of the measure, and re-opening 
numerous issues at present happily and conclusively settled. They 
again drew attention to the phrase in the preamble, reciting that the 
people of the colonies had agreed to federate "under the Constitution 
hereby established;" and urged that the proposed amendment would 
at once vitiate the agreement, and render this solemn declaration a 
violation of the facts. 

They pointed out that it was not quite accurate to say that the 



THE FEDERAL MOVEMENT IN AUSTRALIA. 239 

Enabling Acts referred to the " Constitution " only, and not to the 
covering clauses. Both in the Enabling Acts and in the Addresses 
the " Constitution " meant the whole Bill — the Acts having imposed 
on the Convention the duty of framing a Federal Constitution " in 
the form of a Bill for enactment by the Imperial Parliament." It 
was true that there were ways in which the covering clauses might be 
amended without changing the meaning of the Constitution itself; 
but the proposed amendment of clause 74 was not of this character. 
It had never been admitted that such an alteration would preserve 
the intercolonial compact of the electors. 

They feared that the amendment of clause 74 would encourage 
the persistent opponents of the Bill to renew their agitation. A fresh 
referendum would involve expense, delay, and vexation ; and if a 
referendum were not granted it would be truly asserted that the Bill 
no longer contained the compact accepted by the people. In either 
case, the initiation of the Commonwealth would be embittered by the 
introduction of issues fruitful in strife. 

They had hitherto forborne to dilate on the disadvantages of the 
present system of appeals to the Privy Council ; for not only were the 
delay and expense incapable of serious dispute, and the evils patent 
which were inseparable from the want of judicial knowledge of 
Australian laws and conditions, but the court as at present constituted 
was not attempted to be defended. Whether its proposed recon- 
stitution would suffice from the Australian point of view would 
depend on subsequent Imperial legislation. When Australia had at 
length, after infinite pains, formulated a scheme which satisfied 
Australian requirements, it would be manifestly unfair to postpone its 
adoption pending the consideration of a measure not yet prepared, 
and which might, or might hot, be satisfactory. 

The substantial questions were : — (1) whether clause 74 dero- 
gates from the rights of other parts of the Empire ; and (2) even if 
it technically appears to do so, whether its operation would injuriously 
affect other parts of the Empire. The delegates confessed their 
inability to see that an affirmative answer could be given to either 
question. The clause expressly preserved the rights — or, in its own 
words, the " public interests " — of every part of the Queen's 
Dominions outside the Federation. If the words "public interests" 
had no technical meaning, they must be construed in their ordinary 
and common-sense signification, which was sufficiently definite. 

They elaborated the arguments for the final interpretation in 
Australia of the Australian Constitution. The capacity and integrity 
of Australian Judges would not be disputed. The contention that 
clause 74 would " tend to destroy uniformity of decision on constitu- 
tional questions" was untenable. The principles of interpretation of 
statutes were so well understood that lack of uniformity in that 
regard was out of the question ; and in their application to the words 
of the Australian Constitution the question of uniformity with 
decisions given on (say) the Canadian Constitution would not arise. 
Uniformity of decision as to Constitutions of different design would 
be as unattainable as it was undesirable. Judicial knowledge of local 
conditions was essential to true interpretation. 



240 HISTORICAL INTRODUCTION. 

To the contention that the final decision in Australia of a few 
Australian questions would weaken a '' link of Empire/' and that 
uniform interpretation of the law would facilitate that unity of action 
which would lead to a real Federation of the Empire, the Delegates 
replied that " unity of action " and " uniform interpretation of the 
law " seemed to them wholly unrelated, and certain to remain so. 
They reflected with pride that there were sentiments which would 
constitute eternal links of Empire. " The consciousness of kinship, 
the consciousness of a common blood and a common sense of duty, the 
pride of their race and history — these are the links of Empire ; bands 
which attach, not bonds which chafe. When the Australian fights 
for the Empire, he is inspired by these sentiments; but no patriotism 
was ever inspired or sustained by the thought of the Privy Oonncil," 

The Delegates assured Her Majesty's Government that the 
proposed amendment, even through a covering clause, could not fail 
to be distasteful and harassing to the Australian people. " If they 
accepted the Constitution with such an amendment, it would be 
because they were made to choose between the bowl of intervention 
and the dagger of delay." 

In conclusion, they submitted that the object of those who sought 
" to draw closer together all parts of the Empire " would be best 
served in Australia by never permitting its Federation to be placed in 
even apparent opposition to "the larger question of Imperial 
Federation." So far from there being any conflict between the two, 
it had always been maintained in the colonies that local union was an 
essential preliminary to any practical scheme of Imperial co-operation. 
The suggestion that they were antagonistic was therefore to be 
deprecated, as it was not only unjustified, but must deal a serious 
blow in Australia to the prospects of Imperial Federation. 

" The Delegates therefore plead most earnestly with Her 
Majesty's Government that effect may be given to the representations 
made by the Australian Premiers in their recent telegram. That 
despatch makes it clear that the clause as it stands was repeatedly 
considered and ratified by Convention, Premiers, and people; that 
the electoral adoption of the Bill is a mandate to Executives and 
Legislatures to seek its enactment in the form which the people gave 
it by their representatives, and confirmed by their votes ; that the 
Premiers decline to accept alterations, because that course is un- 
authorized in view of the mandate, and would therefore be improper; 
and that they decline to authorize others to do on their behalf that 
which they cannot rightly do themselves. This request implies no 
questioning of the trusteeship of Her Majesty's Government, of the 
wisdom of Parliament, or of its sovereign power ; but often it has 
been the truest wisdom of sovereignty to abstain from the exei'cise of 
its power, or so to exercise it as only to win the gratitude of those 
who are subject to its authority." 

This Memorandum was subscribed by the Delegates of four of 
the federating colonies ; but Mr. Dickson, the Queensland Delegate, 
refused to sign it, on the ground that to continue to press upon the 
Imperial Government correspondence which might lead to further 
arguments would invite delay in presenting the Bill to Parliament, 



k 



THE FEDERAL MOVEMENT IN AUSTRALIA. 241 



with a possibility of imperilling its immediate consideration. In a 
subsequent Memorandum to the Colonial Office, dated 5th May, Mr. 
Dickson explained that a further reason for his refusal to sign was " a 
conviction that the maintenance of plenary appeal to the Privy 
Council, notwithstanding the provisions ot the Bill, is regarded with 
most cordial approval by every loyal subject — certainly in Queensland 
— and, I believe, generally throughout Australia." He added that 
since their arrival in London, the Delegates had had the honour and 
immense advantage of consultations with the Attorney-General, Sir 
Richard Webster, and Sir Robert Finlay, Solicitor-General, who, at 
interviews and in the reply to the Delegates' first Memorandum, had 
expressed arguments for the maintenance of full appeal which seemed 
to him to be practically unanswerable. 

Final Imperial Memoraxdum. — On 4th May, the Imperial Govern- 
ment addressed a final Memorandum to the Delegates. They said 
that a detailed reply to the Delegates' arguments would merely 
involve repetition of their previous Memorandum ; but there were 
one or two points which deserved a brief comment. First, it could 
not fairly be contended that the referendum on the Bill was to be 
taken as an unqualified and considered ratification of every detail of 
the Constitution, and that no single provision could be altered without 
contravening the decision of the electors. Next, as to the alleged 
disadvantages attending appeals to the Privy Council, they did not 
believe that there was such delay and expense as suggested, and were 
not aware of any patent evils arising from want of knowledge of 
Australian laws and conditions. It had never been admitted, nor 
could it be justly asserted, that the Judicial Committee as at present 
constituted was incapable of defence. They referred to the state- 
ment, in their first Memorandum, that the administration of justice 
by the Privy Council had, on the whole, been such as to command 
the confidence of the Empire. This statement was amply justified by 
the history of that Tribunal, and no inference to the contrary could 
be drawn from any proposals for improving its constitution. The 
excellent work which it had done in deciding the difficult and delicate 
questions arising between the Dominion and the Provinces in Canada 
was in itself a complete refutation of such an idea. The proposed 
amendments were based upon no distrust of the people of Australia ; 
the sole desire of the Government was that, in a matter which affected 
the whole Empire, the Bill should be passed in a form which would 
be best alike for Australia and for every other part of the Queen's 
Dominions. In this endeavour they confidently hoped for the co- 
operation and support of the Australian people. 

Delegates' Fln'al Memoravdcm. — To this the four Delegates 
replied briefly with yet another Memorandum dated 8tli May. They 
agreed that no useful purpose would be served by further written 
discussion of the proposed amendments. They denied, however, that 
the amendment as to appeals was in any sense " a detail of the 
Constitution." It had been treated from the first, on both sides, as 
vital. To the suggested amendment in regard to the Colonial Laws 
^ alidity Act they had made no reference in their second Memorandum, 
as they had understood that it had been abandoned. Without re- 



242 HISTORICAL INTRODUCTION. 

ceding from theii' previous opinion, they now urged that such an Act 
ought not to apply to great self-governing communities like the 
Dominion and the Commonwealth, whose statutory authority should 
be subordinate only to that of the Imperial Parliament when exercised 
after the establishment of their Constitutions and expressly applied. 
They trusted that even now the Imperial Government might be 
willing to provide by separate legislation for this and any other 
matter they might consider essential, passing the Commonwealth Bill 
without amendment as desired by the peoples. Parliaments, and 
Governments of the colonies. For the immediate and ultimate 
consequences if the suggested amendments were made the Delegates 
could not be held responsible. If they had been outspoken and 
tenacious of their views, the sincerity of their apprehensions would,^ 
no doubt, be accepted as sufficient justification. 

Introduction op the Bill. — On 14th May, Mr. Chamberlain intro- 
duced the Commonwealth Bill into the House of Commons. The Bill 
as introduced differed from the draft of the Convention in the 
following particulars : — 

In the preamble, the words " and under the Constitution hereby 
established " were omitted. In covering clause 2, the words '' This 
Act shall bind the Crown " were omitted, and the clause conse- 
quentially amended so as to read "The provisions of this Act and 
of the Constitution set forth in the schedule to this Act," &c. The 
blanks in the preamble and in covering clause 3 were filled in, and in 
the latter clause the words providing for the admission of Western 
Australia as an Original State were inserted. To covering clause 5 
the following words were added : — " Notwithstanding anything in the 
Constitution set forth in the schedule to this Act, the prerogative of Her 
Majesty to grant special leave to appeal to Her Majesty in Council may 
be exercised with respect to any judgment or order of the High Court of 
the Commonwealth or of the Supreme Court of any State." To the 
definition of " Commonwealth " in covering clause 6 the following 
words were added : — " and the laws of the Commonwealth shall be 
colonial laws within the meaning of the Colonial Laws Validity Act, 
1865." Covering clause 9 was altered to read : — " Subject to the 
foregoing provisions, the Constitution of the Commonwealth shall be 
as set forth in the schedule to this Act." Before the Constitution the 
word "SCHEDULE" was inserted; and at the end of the table of 
divisions of the Constitution the words "The Schedule'^ were omitted. 

In the Constitution itself, the blank in clause 26 was filled in, 
with an alternative provision in the event of Western Australia being 
an Original State. In clause 42, the words "to this Constitution"^ 
were added after "schedule." Clause 74 was omitted, and the last 
paragraph of clause 78 was placed as clause 74. In clause 95, after 
"Western Australia," the words ''if that State be an Original State" 
were added. In clause 125, the words "if New South Wales be an 
Original State " and " if Victoria be an Original State " were omitted, 
with consequential amendments. At the end of the Constitution, the 
word " The " before " Schedule " was omitted. 

In introducing the Bill, Mr. Chamberlain said, to a crowded and 
enthusiastic House, that it marked an era in the history of Australia, 



THE FEDERAL MOVEMENT IN AUSTRALIA. 243 



and a great and important step towards the organization of the British 
Empire. This Bill — the result of the careful and prolonged labours 
of the ablest statesmen of Australia — enabled that gi-eat island con- 
tinent to enter at once the widening circle of Euglish-speaking 
nations. It would be in the interests of Australia, aud also of the 
Empire, rendering the relations between the colonies and the mother- 
land more cordial, more frequent, and more unrestricted. " Therefore 
we all of us — independently of party — welcome the new birth of 
which we are witnesses, and anticipate for these great, free, and 
progressive communities a future even more prosperous than the past, 
and an honourable and important position in the history of the 
Anglo-Saxon race." 

He then briefly sketched the history of the movement, and lauded 
the services of Sir Henry Parkes, Sir Samuel Griflith, and Mr. 
Barton. He described the Bill as " a monument of legislative 
capacity." Though it might not be perfect, yet, considering the 
magnitude and variety of the interests dealt with, no praise could be 
too high for those whose moderation, patience, skill, mutual considera- 
tion, and patriotism, had been able to produce so great a result. 

He contrasted the Constitution with tliat of Canada, and briefly 
outlined its provisions. The Bill had been prepared by the Australian 
people ; and though he denied altogether that Australia regarded the 
Imperial Parliament merely as a court for the registration of their 
decrees — though he was convinced that the Australian people would 
be neither offended nor insulted at the alteration of a word or even a 
clause — he did think that they expected a reasonable regard to their 
opinion whenever it had been conclusively shown, and to those rights 
of self-government of which they had made so magnificent a use. The 
principles on which the Imperial Government had dealt with the Bill 
were these. They had accepted without demur, and they ask' d the 
House to accept, every word, every line, every clause, which dealt 
exclusively with the interests of Australia. But where the Bill 
touched the interests of the Empire as a whole, or of Her Majesty's 
subjects or possessions outside Australia, the Imperial Parliament 
occupied a position of trust which it was not the desire of the Empire 
— nor, he believed, of Australia — that they should fulfil in a formal 
or perf unctoi-y manner. In accordance with these principles they had 
made some amendments ; but they had refused — even at the desire of 
Western Australia aud Xew Zealand — to make amendments where 
Imperial interests were not affected. 

With regard to the Colonial Laws Validity Act, he proposed to 
make its application clear. The Delegates had recently raised a new 
point — whether the Act ought to apply to great Commonwealths like 
Australia and Canada. He admitted that this was a perfectly fair 
point to raise ; but such an important change could not be introduced 
without mature consideration, and consultation with both Canada and 
Australia. He thought that clause 74 of the draft Bill would weaken 
a link of Empire. Ho admitted that those links depended entirely on 
freewill and assent ; but before agreeing to so serious a change, he 
wanted to be quite certain that it had behind it the whole force of 
Australian opinion. The resolutions of the Premiers did not indicate 



244 HISTORICAL INTRODUCTION. 

that there would be any strong feeling in Australia against the 
amendments. The Governments of three out of seven colonies — 
Queensland, Western Australia, and New Zealand — were in favour of 
the amendments ; so were the Chief Justices of all the colonies, and 
an enormous preponderance of the newspapers of Australia. 

With regard to the reconstitution of the Supreme Court of the 
Empire, he admitted that the tentative provisions of the Judicial Com- 
mittee Amendment Act, 1895, for the appointment of Colonial Judges 
to the Privy Council, had not been satisfactory. The question of 
constituting a new Court required further consideration ; but, mean- 
while, he proposed to introduce a Bill to provide for the appointment 
of a representative from each great colonial possession and from 
India to the Privy Council ; such representatives to hold office for 
seven years, to sit during that time as Lords of Appeal, to receive 
from the Imperial Exchequer the salary of Lords of Appeal, and to 
have life peerages. 

Sir Kenry Campbell-Bannerman, leader of the Opposition, 
expressed regret and disappointment that the Government had not 
felt themselves obliged to accept the Bill in its entirety. He thought 
that any proposed amendments should have been formulated and 
submitted to Australia at an earlier stage, and that Conferences and 
Memoranda in the Jubilee Year were not enough, in view of the many 
subsequent opportunities for intervention. The Government, by 
reserving action, had in effect, though not in intention, flouted 
Australia. He deprecated the conduct of the Government in going 
behind the opinions of the accredited representatives of Australia. 

Mr. George Denison Faber, the new member for York, spoke 
of the appeal clauses from an experience of nine years as Registrar 
of the Privy Council. He pointed out that the nominal strength 
of the Privy Council was greater than that of the House of 
Lords; the real trouble was when both were sitting. He opposed 
amalgamation, but thought that the time had come for the estab- 
lishment of a new Court altogether, and the appointment of more 
paid Judges. Sir Charles Dilke was glad that the substantial 
amendments had been reduced to two, and thought that Mr. 
Chamberlain had failed to show any vital necessity for amending the 
Bill. Mr. Yicary Gibbs spoke in favour of the amendments. 
Mr. Haldane saw no necessity for postponing the amalgamation of 
the Judicial Committee and the House of Lords ; and urged that 
so long as the jurisdiction of the House of Lords was retained, it 
would be impossible to preserve the status of the Privy Council. 
Whilst there were two tribunals, one was starved to keep up the 
other, and judicial strength inevitably gravitated to the House of 
Lords. Mr. Stanley Leighton agreed that the objections to the 
present constitution of the Judicial Committee were well founded. 
The first reading was carried on the voices, with cheers. 

The First Compromise. — In spite of the apparently uncompro- 
mising attitude of the Imperial Government, the Delegates did not 
despair of securing some modification of the proposed amendment. 
They had failed in what they believed to be their mandate to 
endeavour to secure the passage of the Bill without amendment; and 



THE FEDERAL MOVEMENT IN AUSTRALIA. 245 



when the amended Bill had been actuallv introduced, they conceived 
that the position was altered, and that they were authorized to 
negotiate with a view to securing a compromise. The publication of 
the Blue Book, containing the correspondence between the Delegates 
aud the Imperial Government, had greatly increased public interest in 
the question ; and the English press, whilst generally approving the 
resolve of the Govei'nment to protect Imperial interests, showed a 
marked sympathy with the aims of the Delegates. The Delegates had 
several interviews with Mr. Chamberlain and the Crown Law Officers, 
who met them cordially, and were willing to concede what they could, 
consistently with the principle of reserving the right of appeal to the 
Privy Council where interests outside Australia were affected. At 
last, on 19th May, Mr. Chamberlain offered to substitute for the first 
paragraph of clause 74 the following words : — 

"No question, howsoever arising, as to the limits inter se of the 
constitutional powers of the Commonwealth and those of any State 
or States, or as to the limits inter se of the constitutional powers of 
any two or more States, shall be capable of final decision except by 
the High Court, and no appeal shall be permitted to the Queen in 
Council from any decision of the High Court on any such question 
unless by the consent of the Executive Government or Governments 
concerned, to be signified in writing by the Governor-General in 
the case of the Commonwealth, and by the Governor in the case of 
any State." 

The second paragraph of clause 74 was unaltered, except that to 
the power to make laws limiting the right of appeal was added a 
proviso that " any proposed laws containing any such limitation shall 
be reserved by the Governor-General for Her Majesty's pleasure." 
To clause 73, after " final and conclusive," it was proposed to add 
" unless the Queen grants special leave to appeal in accordance with 
section 74." 

Tlie object of this provision was to make the decision of the 
High Court final on questions as to the limits of Federal and State 
powers inter se, unless both parties — or, if the parties were private 
citizens, the Governments whose powers were affected — desired an 
appeal. The Delegates, at their own request, Avere authorized by 
their Governments to secure the nearest approach possible to the 
original Bill ; and as this was offered by Mr. Chamberlain as the 
utmost limit of concession, they expressed their approval of it, subject 
to possible verbal improvements. 

Second Reading of the Bill. — On 21st May, Mr. Chamberlain 
moved the second reading of the Bill in the House of Commons. 
^Vith regard to the Colonial Laws Validity Act, he announced that 
after further discussion with the Delegates, the Government had 
decided that the best way of removing doubts would be to omit the 
definition of "colony" in covering clause 6. It would then be 
unnecessary to make any further amendment in this respect. With 
regard to Privy Council appeals, he reaffirmed the principle of non- 
interference with purely Australian interests, and vigilance for 
Imperial interests. He pointed out that clause 74 of the draft 
Constitution recognized this distinction by making an exception where 



246 HCSTORICAL INTRODUCTION. 

" the public interests " of some part of Her Majesty's dominions out- 
side Australia were involved ; but the distinction did not go far 
enough. It was uncertain whether the phrase " public interests " 
would cover, for instance, the private interests of investors, or of any- 
body of Her Majesty's subjects. Moreover, foreign relations were of 
equal importance with Imperial relations. The proposals of the 
Imperial Government had been before Australia for a week, and had 
been in most cases favoui-ably considered. The Delegates, too, finding 
it impossible to carry out what they believed to be their mandate to 
secure the passage of the Bill without amendment, had been most 
considerate, and he had now arrived at an absolute agreement with 
four of them. He then read and explained the proposed new clause. 
With regard to the power of the Federal Parliament to limit the right 
of appeal, the Delegates had pointed out to him that a similar power 
was inherent in the Parliaments of the Australian colonies, subject to 
the reservation of the Bill exercising such power. Accordingly, it was 
proposed to grant this right to the Commonwealth, subject to an 
absolute statutory requirement that such Bills should be reserved. 

Mr. Asquith, for the Opposition, expressed his gratification at 
Mr. Chamberlain's announcement of a settlement. He admitted the 
trusteeship of the Imperial Parliament, but thought that the danger 
of clause 74 had been exaggerated in some quarters. Mr. Henniker 
Heaton, Mr. Blake, Mr. James Bryce, and Mr. S. Evans joined in the 
congratulations. The Attorney-General expressed his appreciation of 
the tone of the debate, which was concluded by Mr. W. Redmond and 
Mr. T. M. Healy declaring, on behalf of Ireland, their envy at the 
rights of self-government accorded to Australia. The Bill was then 
read a second time with cheers, and taken into Committee pro forma. 

Australian Criticisms. — In Australia, however, the suggested 
compromise was received, first with hesitation, and then with distinct 
disapproval, both the drafting and the policy of the new clause being 
condemned. On 24th May, a telegram seems to have been sent by 
the Government of New South Wales to Mr. Chamberlain, indicating 
acceptance of the arrangement by the Premiers ; but a study of the 
cabled text of the clause changed the situation. In Queensland, 
Sir Samuel Griffith pointed out that the provision that no con- 
stitutional question should be "capable of final decision except 
by the High Court " was a clumsy and inaccurate mode of saying 
that all appeals in such cases should be brought to the High 
Court alone. He also argued that this would be a restriction, and 
not an extension, of the right of appeal to the Privy Council given 
by the original clause — under which he contended that appeals, even 
in constitutional cases, would lie from the State Courts direct to the 
Privy Council. This, however, was not the generally received inter- 
pretation of the original clause, nor was it the intention of the 
Convention, wliich clearly intended that the prohibition of appeals to 
the Privy Council in constitutional matters should include appeals 
from the vState Courts ; (see Historical Note to sec. 74 infra). But his 
strongest point was that in cases between private suitors, in which a 
constitutional point arose, a party's right of appeal ought not to be 
made dependent on the consent of the Executive Government of his 



THE FEDERAL MOVEMENT IN AUSTRALIA. 247 

State or of the Commonwealth. In all the colonies it was forcibly 
urged that the interference of the political with the judicial depart- 
ment would be fraught with danger. Mr. Philp threatened that, if 
the new amendment were adhered to, he would demand the insertion 
of a clause requiring the assent of the Queensland Parliament before 
the Bill became operative in that colony. In South Australia, the 
Chief Justice, Sir Samuel Way, commented on the new clause as being 
not only obscure, but dangerous, novel, and unauthorized. 

Meanwhile, to remove ambiguities and meet some of the criticisms 
from Australia, the first part of the proposed clause was redrafted as 
follows : — 

" Xo question, however arising, as to the limits inter se of the 
constitutional powers of the Commonwealth on the one hand, and 
those of any State or States on the other, shall be capable of final 
decision by any Court other than the High Court, except that an 
appeal may be permitted to the Queen in Council from any decision of 
the High Court on any such question by the consent of the Executive 
Governments concerned, whether parties or not to the litigation, the 
consent to be signified by the Governor-General in the case of the 
Commonwealth, and by the Governor in the case of a State." 

This verbal improvement, however, did not meet the main 
objections to the proposed clause ; and on 14th June the Premiers of 
the southern colonies sent a joint telegram to Mr. Chamberlain, stating 
that opinion throughout Australia was strongly opposed to subjecting 
the right of appeal to the consent of the Executive Governments. 
They urged the reconsideration of the proposal to pass the Bill with- 
out amendment. If that was impossible, they said that the original 
proposal to preserve the prerogative right of appeal intact would be 
less objectionable than the new proposal. 

The Final Compromise. — Sir George Turner, in an interview, 
suggested the substitution of the leave of the High Court for that of 
the Executive Councils. Mr. Wise and Mr. O'Connor telegraphed the 
same suggestion to Mr. Barton; but on 16th June, just before the 
arrival of this telegram, Mr. Chamberlain, in consultation with the 
Delegates, had at last resolved to make this further concession, and 
to offer clause 74 in the form in which it now stands in the Constitution. 
This was gladly accepted by the Delegates, including Mr. Dickson. 
The Queensland Government withdrew their protest, and offered no 
objection. The Government of Victoria expressed approval of the 
clause as altered ; and the Government of South Australia, while re- 
iterating their inability to accept any amendment, telegraphed that 
they did not anticipate any difficulty from the amendment now pro- 
posed. The Government of Western Australia telegraphed that the 
new proposal was preferable to the previous one, but that they would 
have preferred an appeal as a right, without leave. In New South 
Wales — the only colony in which Parliament was then sitting — the 
Government submitted to both Houses a resolution affirming that the 
amendment now proposed was not such an important departure from 
the original Bill as would justify any action which would further delay 
Fedei-ation. This was carried without division in the Assembly on 
21st June, and in the Council on 27th June. 



248 HISTORICAL INTRODUCTrON. 

The Bill in Committee. — On Monday, 18th June, the discussion 
of the Bill in Committee of the House of Commons was begun. In 
covering clause 5, Mr. Chamberlain moved the omission of the words 
which had been inserted to save the prerogative of appeal in all cases 
(see p. 242, supra). He suggested that as some of the verbal amend- 
ments which were on the notice paper in his name hinged upon the 
acceptance of clause 74 as now proposed, this Avould be the best time 
for a general debate on the subject of appeals. He described the 
proposed settlement as an " arrangement " rather than a compromise, 
as neither party gave up anything to which they attached importance. 
The Australian objections to the previous proposal had been (1) that 
it would limit the right of appeal from the State courts more than 
was done by the original Bill — it being thought in some quarters that 
the original Bill did not prohibit appeals from the State courts to the 
Privy Council in constitutional cases ; (2) that it introduced the 
Executive into judicial questions. The new arrangement — in connec- 
tion with which he acknowledged the assistance given by Sir Samuel 
Griffith — met these objections, and satisfied all the five Delegates ; 
though no reply had yet been received from their Governments. 
Several members of the Opposition complained that the House was 
placed in a difficult position by being asked to debate so important a 
clause on such short notice, and without information as to the views 
of the Australian Governments. Eventually, after some discussion, 
the debate was adjourned till Thursday, 2 1 st June. 

On that date the Committee stage was resumed. Mr. Chamber- 
lain read telegrams announcing that the Governments of Victoria, 
Queensland, South Australia, and Tasmania, were satisfied with the 
proposed arrangement, and that the Parliament of New South Wales 
was being consulted, and would probably agree. He pointed out that 
the right of appeal to the Privy Council would be the same as in 
Canada, with the trifling exception — which he was almost inclined to 
think an improvement — that in certain rare cases the leave to appeal 
would be granted by the High Court and not by the Privy Council. 
Mr. Haldane and Mr. Bryce thought that in some respects — and 
particularly as regards cases involving the public interests of Imperial 
possessions outside the Commonwealth — the clause in the original Bill 
was better than that now proposed ; and they suggested that there 
would be some ground for the argument that in constitutional cases 
the High Court was co-ordinate with, and not subordinate to, the 
Privy Council. This contention was answered by Sir William Anson 
and by the Attorney-General, Sir IJobert Finlay. Mr. Asquith 
admitted that as the colonies had assented to the arrangement, it 
should be carried into effect. Mr. Chamberlain's amendment to 
covering clause 5 was agreed to. 

In covering clause 6, the reference to the Colonial Laws Validity 
Act was omitted, as was also the definition " Colony shall mean any 
colony or province." Covering clause 9 was restored to its original 
form, the Constitution being thus appended to the clause, instead of 
forming a Schedule to the Act. 

In the Constitution itself, the original last paragraph of clause 
73 was restored to its position, instead of standing as clause 74, and 



THE FEDERAL MOVEMENT IN AUSTRALIA. 249 

the new clause 74 was inserted according to arrangement. In the 
Preamble, the words "and under the Constitution hereby established" 
Avere restored. The Bill was then reported with amendments. 

The Bill in the House of Lords. — In the House of Lords, the 
Bill was read a first time on 26th June. The second reading was 
moved on 29th June by the Earl of Selborne, Under-Secretary for 
the Colonies. Earl Carrington accused Mr. Chamberlain of imprudence 
which had imperilled the Bill, and characterized his settlement as an 
unconditional surrender. The Earl of Halsbury, Lord Chancellor, 
deprecated this as a partizan attack which would mar the harmony 
and unanimity of the Empire's acceptance of the Bill. Lord Davey 
thought the appeal clause was not a happy solution of the difficulty, 
and hoped that the colonies would hereafter modify it. The Earl of 
Jersey, the Earl of Kimberley, Lord James of Hereford, Lord Russell 
of Killowen, Viscount Knutsford, and Lord Brassey, spoke in terms 
of congratulation. The Bill was read a second time and taken into 
committee j)ro forma. On 3rd July, it was carried through Committee 
without amendment, and on 5th July it was read a third time and passed. 

The Royal Assexi. — On 9th July, the Queen gave her assent to 
the Bill. At the request of the Delegates, Her Majesty signed the 
Commission, declaring her assent to the Bill, in duplicate, and gave 
Mr. Barton one of the copies, as well as the pen, inkstand, and table 
used by Her Majesty, to be preserved in the Federal Parliament 
Buildings. On the same day, in the House of Lords, the House of 
Commons having been summoned to the bar, the Lords Commissioners 
(the Earl of Halsbury, the Earl of Hopetoun, and the Earl of Kintore), 
announced the Royal assent to the Bill, which was received with cheers. 

Adoptiox by Western Australia. — On 17th May — three days after 
the introduction of the Commonwealth Bill in the House of Commons — 
the West Australian Parliament met, and an Enabling Bill was at 
once introduced. It was on the lines of the Enabling Acts passed in 
the other colonies, and provided for the submission of the Constitution 
to a referendum of the people of the colony, and for an address to the 
Queen in the event of the vote being in the affirmative. 

On 23rd May Sir John Forrest moved the second reading, and 
announced that he would vote for Federation, though he did not see 
that it would be any great benefit to Western Australia for some time. 
The Bill as introduced provided for a referendum on the existing 
rolls; but during the debate the Government consented to have it 
taken in accordance with the newly extended franchise of the colony 
(see p. 71 supra), so that all adults — men and women — who had been 
twelve months in the colony should be entitled to vote. 

The second reading was carried without a division on 31st May. 
In the Council slight amendments were made, which were accepted 
by the Assembly. On 13th June the Bill was assented to. 

The referendum was fixed for 31st July, and the campaign for 
and against the Constitution began at once. Sir John Forrest fought 
hard for the Bill, though some of his colleagues opposed it. The 
logical and sentimental argument for the completion of the continental 
union was made the most of. The ultimate entry of Western 
Australia into the Commonwealth was recognized as inevitable; and 



■250 



HISTORICAL INTRODUCTIOK 



it was forcibly urged that even if the immediate benefits of Federation 
to Westera Australia were not obvious, her interests would be better 
secured by joining the union at the outset, and helping to mould the 
federal policy, than by standing aloof. The strongest argument of 
the opponents was that a federal tariff with intercolonial freetradt 
would dislocate the finances of the colony, and that section 95, allow- 
ing Western Australia to retain intercolonial duties on a diminishing 
scale for five years, was inadequate to meet the difficulty. This 
argument was assisted by appeals to intercolonial jealousy and by 
vague allusion to the terrors of the unknown. The stronghold of thr 
federal party was on the goldfields, where the population was largely 
recruited from the other colonies ; whilst the most solid opposition 
came from the agricultural interests, which dreaded the removal of 
the duties on intercolonial produce. 

Though federalists were confident of victory, the decisive issue 
was a surprise. The result of the poll was a vote of 44,800 for the 
Constitution, and 19,691 against, leaving an affii-mative majority of 
25,109. An analysis of the voting gives the following result : — 



— 


Yes, 


No. 


Majority. 


Metropolitan ^Electorates 

Fremantle Electorates 

<lokllields Electorates 

Country Electorates 


7,008 

4,687 

26,. 330 

6,775 


4,380 
3,141 

1,813 
10,357 


2,628 
1,546 
24,517 
(Min. 3,582) 


Total 


44,800 


19,691 


25,109 



On 21st August, both Houses of the Parliament of Western 
Australia passed addresses to the Queen, praying that Western 
Australia might be included as an Original State of the Common- 
wealth in the Proclamation shortly to be made. 

The Royal Proclamation. — The issue of the Queen's Proclamation 
fixing the day for the establishment of the Commonwealth had been 
withheld pending the issue of the referendum in Western Australia, 
in order to enable her Majesty to be " satisfied that the people of 
Western Australia have agreed " to join the Commonwealth. Mean- 
while some telegraphic communications passed between the Imperial 
and Colonial Governments as to the date on which the Commonwealth 
should be established. The prevailing opinion was in favour of the 
1st January, 1901, the first day of the twentieth century — a dramati' 
and siofnificant date for the birth of Australian nationhood. Th' 
.sentimental argument was reinforced by the practical one that the Isi 
January was the beginning of a financial half-year in all the colonies. 
On the other hand there was some advocacy of the 26th January — 
the anniversary of the foundation of New South Wales in 1788 — which 
was celebrated in several of the colonies as the patriotic festival of 
the year. The date chosen was the 1st January; accordingly, on 17th 
September, 1900, the Queen signed the Proclamation declaring that on 
and after the first day of January, 1901, the people of New Soutli 
Wales, Victoria, South Australia, Queensland, Tasmania, and Western 



THE FEDERAL MOVEMENT IX AUSTRALIA. 251 

Australia should be united in a Federal Commonwealth under the 
name of the Commonwealth of Australia. 

Thus all the five colonies of the mainland of Australia, and also 
the adjacent island of Tasmania, become Original States of the 
Commonwealth which is to be inaugurated on the first day of the 
twentieth century. The Commonwealth, as few dared to hope it 
would, comes into existence complete from the first — " a nation for 
a continent, and a continent for a nation." The delays at which 
federalists have chafed have been tedious, and perhaps dangerous, 
but they have been providential ; they have given time for the gradual 
but sure development of the national spirit in the great colonies of 
Queenshind and Western Australia, and have prevented the establish- 
ment of a Commonwealth of Australia with half the continent of 
Australia left, for a time, outside. 

But though Australian union has been completed, Australasian 
union has not. New Zealand — separated from Australia by 1,200 
miles of sea, and correspondingly more self-contained and less in 
touch with the national sentiment of Australia — has not yet decided 
to enter the Commonwealth. The choice between union or isolation, 
which has not yet been directly presented to the people of New 
Zealand, cannot long be deferred. On 19th October, 1900, a reso- 
lution was passed by the New Zealand House of Representatives, 
on Mr. Seddon's motion, declaring it to be desirable (a) That a Royal 
Commission should be appointed to inquire into and report upon the 
desirability or otherwise of New Zealand becoming a State of the 
Commonwealth : {h) that if the Commissioners deem Federation for 
the present inadvisable or premature, they should report as to the 
establishment of a reciprocal treaty between the Commonwealth and 
New Zealand, and indicate the lines on which it should be based : 

(c) that the Commissioners entrusted with this all-important matter, 
affecting the national life and well-being of New Zealand, should be 
conversant with the agricultural, commercial, and industrial interests 
of the colony, and be otherwise eminently fitted for their high office : 

[d) that they should be empowered to proceed to Australia to take 
evidence : and (e) that their report should be presented to the New 
Zealand Parliament within ten days of the opening of the next session. 

The report of this Commission will be awaited with interest. 
Meanwhile Mr. Seddon's " Greater New Zealand " policy (see p. 639, 
infra) indicates that he is endeavouring to secure as advantageous 
a position as possible for a commercial treaty with the Common- 
wealth, in the event of a decision adverse to immediate union. 

Appointmext op the Govern'or-Genekal. — On 14th July it was 
officially announced that the first Governor-General of the Common- 
wealth of Australia would be the Right Honourable the Earl of 
Hopetoun, G.C.M.G., then Lord Chamberlain. Lord Hopetoun was 
already well known in Australia, having been Governor of Victoria 
from 1889 to 1895, during which time he had been one of the most 
popular, although one of the youngest, of Australian Governors, and 
had earned the reputation of a tactful and capable administrator, and 
a worthy representative of the Crown. His choice as the first holder 
of the high and honourable office of Governor-Genei-al of the Common- 
wealth gave oreneral satisfaction. 



252 HISTORICAL INTRODUCTION. 

The actual appointment of the Governor-General could not, in 
accordance with clause 3 of the Commonwealth Act, be made until 
after the issue of the Queen's Proclamation which fixed the date of 
the establishment of the Commonwealth. On 21st September Lord 
Hopetoun waited upon the Queen at Balmoral Castle, when Her 
Majesty invested him with the knighthood of the Order of the Thistle. 
He delivered into Her Majesty's hands the wand and badge of the 
Lord Chamberlain of Her Majesty's Household, and received the 
commission of his appointment as Governor-Cireneral. 

Preparations for the Inauguration. — Shortly after the Royal 
Proclamation, it was announced that the inauguration of the Common- 
wealth, on the 1st January, 1901, would take place in Sydney. The 
Parliaments of the six colonies began to legislate, under the authority 
of clause 4 of the Commonwealth Act, and sees. 9 and 29 of the 
Constitution, for prescribing the method of choosing senators, deter- 
mining the times and places of elections of senators, and determining 
the electoral divisions for the House of Representatives ; with such 
other local legislation as was deemed advisable in view of the 
approaching change in the political condition of the colonies. 

On 17th September, it was ofiicially announced that the Queen, 
on the recommendation of Lord Salisbury, had assented to a visit by 
the Duke and Duchess of York to Australia, early in the year 1901, 
when the Duke of York would be commissioned by Her Majesty to 
open the first session of the Parliament of the Commonwealth in her 
name. Although Her Majesty naturally shrank from parting from 
her grandson for so long a period, she fully recognized the greatness 
of the occasion which would bring her colonies of Australia into 
federal union, and desired to give this special proof of her interest in 
all that concerned the welfare of her Australian subjects. Her 
Majesty wished at the same time to signify her sense of the loyalty 
and devotion which had prompted the spontaneous aid so liberall} 
offered by all the colonies in the South African War, and of the 
splendid gallantry of her colonial troops. 

Conclusion. — During the past century the foundations of 
Australian nationhood have been laid ; with the new century will 
begin the task of building the superstructure. Political barriers have 
been broken down, and the constitutional compact which, politically 
speaking, creates the Australian people, has been framed, accepteil. 
and established. But all this is only the beginning. The new national 
institutions of Australia have to be tested in the fire of experience ; 
provincial jealousies have to be obliterated; national sentiment has 
to be consolidated ; the fields of national legislation and national 
administration have to be occupied. Australian statesmanship and 
patriotism, which have proved equal to the task of constructing tli<' 
Constitution, and of creating a new nation within the Empire, are now 
face to face with the greater and more responsible task of welding 
into a harmonious whole the elements of national unity, and of guiding 
the Australian people to their destiny — a destiny which, it may br 
hoped, will always be linked with that of the mighty Empire of which 
they form a part. 



LrST OF MEMBERS, &c. 



253 



LIST OF MEMBERS OF FEDERAL CONVENTIONS, 
CONFERENCES, &c. 



Intercolonial A.N.A. Federation Conference, Melbourne, 

January, 1890. 



OFFICERS : 



President. — Sir John C. Bray, K.C.M.G., Speaker of the House of Assembly, 

South Australia. 

Vice-Presidents. — Messrs. G. H. Wise and B. B. NicoU, M.P.. 

Secretaries. — Messrs. F. C. Wainvrright, W. Burnet, and J, W. Hill. 



DELEGATES. 



Mr. E. Bowling 

Mr. \V. S. Dowel, M.P. 

Mr. J. W. Hill 

Mr. B. B. NicoU, M.P. 



New South Wales. 



Mr. Xinian Melville, M.P. 

Mr. H. Slatyer 

Mr. R, Thompson 

Mr, J. T. Wilshire, M.P. 



Sir John C. Bray, M.P. 
Mr. H. H. Barrett 
Hon. J. C. F. Johnson, M.P. 
Mr. \V. Burnet 



Mr. W. Maley 



South Australia 

Mr. S. H. Prior 
Mr. W. J. Sowdeu 
Mr. C. Tucker 
Mr. W. H. Wadey 

Western Australia. 

Mr. E. p. Nesbit 



Mr. J. Alls 



Mr. T, J. Connelly 
ilr. J. C. Bottomley 
Mr. Field Barrett 



Queensland. 
Mr. J. R. Bradsliaw 

Victoria. 

Mr. J. W. Larter 
Mr. A. J. Peacock, M.P. 
Mr G. H. Wise 
Mr. F. C. Wainwright 



Mr. W. V. Brown 



254 LIST OF MEMBERS OF 

AUSTRALIAN NATIVES' ASSOCIATION, VICTORIA. 



List of Presidents of the Board of Directors, from its 
inception to June, 1900 :— 



Mr, 


T. O'Callaghan 


Melbourne 


1877 and 1878 




S. Cadden 


Ballarat 


1879 and 1880 




M. J. Cahill 


Bendigo 


1881 




Wm. Anderson 


Creswick 


1882 




R. H. Hart 


Stawell 


1883 




0. E. Wilson 


Ballarat 


1884 




A. J. Peacock, M.L. A.... 


Creswick 


1885, 1886, I89.S 




T. J. Connelly 


Bendigo 


1887 




J L. Piirves, Q.C. 


Melbourne 


1888, 1889 




D. J. Wheal 


Ballarat 


1890 . 




G. H. Wise 


Sale 


1891 




J. W. Larter 


Ballarat 


1892 




G. Fitzsimmons 


Prahran 


1894 




.J. W. Kirton, M.L. A. ... 


Ballarat 


1895 




J. H. Cook, M.L. A. ,.. 


Brunswick 


1896 




R. F. Toutcher, M.L. A,.. 


Richmond 


1897 


Dr. 


C. Carty Salmon, ML. A. 


Avoca 


1898 


Mr, 


. E. E. Roberts 


Flemingtoii 


1899 


,, 


Walter Skelton 


DunoUy 


1900 



NATIONAL AUSTRALASIAN CONVENTION, 1891. 



OFFICERS : 

President.— The Honourable Sir Henry Parkes, G.C.M.G., M.L. A. 

Vice-President. — The HonourableSir Samuel Walker Griffith, K.C.M.G., Q.C, M.L A 



DELEGATES. 



New South "Wales. 

The Honourable Sir Henry Parkes, The Honourable William Henry Suttoi. 

G.C.M.G., M.L. A. M.L.C. 

The Honourable William McMillan, M.L. A. The Honourable Edmund Barton, Q.C, 
The Honourable Joseph Palmer Abbott, M.L C. 

M.L. A. The Honourable Sir Patrick Alfred 
George Richard Uibbs, Esquire, M.L.A. Jennings, K.C.M.G., LL.D., M.L.C. 

New Zealand. 
Sir George Grey, K.C.B. TheHonourableSir Harry Albert Atkinson. 

Captain William Russell Russell, M.H.R. K.C.M.G., M.L C. 

Queensland. 

•The Honourable John Murtagh Macrossan, The Honourable Sir Thomas Mcllwraitli, 

M. L. A . K . C. M. G. , LL. 1). , M . L. A. 

The Honourable John Donaldson, M.L.A. The Honourable Arthur Rutledge, M.L.A 
The Honourable Sir Samuel Walker Griffith, The Honourable Andrew Joseph^ ThjTinc. 
K.C.M.G., Q.C, M.L.A. M.L.C 

The Honourable Thomas Macdonald-Paterson, M.L.C. 



FEDERAL COXYENTIOXS, CONFERENCES, i-c. 255 

South Australia. 
me Honourable Richard Chaffey Baker, John Alexander Ck>ckburn, Esquire, M.I)., 

C.W.(t.,ML.C. M.H.A. 

The Honourable John Hannah Gordon, The Honourable Sir John William Downer, 

M.I^C. K C.M.G., Q.C., M H.A. 

The Honourable Sir John Cox Bray, The Honourable Charles Cameron Kingston, 
K C M.G., M.H.A. ' Q.C., M.H.A. 

The Honourable Thomas Playford, M.H.A. 

Tasmania. 

The Honourable William Moore, M.L.C. The Honourable Nicholas John Brown, 

The Honourable Adye Douglas, M.L.C. M.H.A. 

The Honourable Andrew Inglis Clark, The Honourable Bolton i^tafiFord Bird, 

M.H.A. M.H.A. 

The Honourable William Henry Burgess. The Honourable Philip Oakley Fysh, 

M.H.A. M.L.C. 

Victoria. 

The Honourable Alfred Deakin, M.L.A. The Honourable Henry John Wrixon, Q.C. 

The Honourable .James Munro, M.L.A. M.L. A. 

The Honourable Lieutenant-Colonel William The Honourable Duncan Gillies, M.L.A. 
CoUard Smith, M.L.A. The Honourable Henry Cuthbert, M.L.C. 

The Honourable Nicholas Fitzgerald, M.L C. fThe Honourable William Shiels, M.L.A. 

"Western Australia. 
Ihe Honourable John Forrest, C.M.G., The Honourable John Arthur Wright. 

M.L. A. M.L.C. 

The Honourable William Edward Marmion, The Honourable John Winthrop Hackett, 

M.L.A. M.L.C. 

The Honourable Sir James George Lee- Alexander Forrest, Esquire, M.L.A. 

Steere, M.L.A. William Thorley Loton, Escjuire, M.L.A. 

* Decease reported Slst March. f Actinjr from 2nd to 9th March, during absence of Mr. Wrixon. 



COROWA FEDERATION CONFERENCE. 

AUGUST, 1S93. 



OFFICERS : 
Pkesidest.— Mr. B. B. NicoU, M.L. A. 
Vice-Presidents. — Messis. J, Wilkinson, M.L.A., E. J. Gorman, A. Jameson, and 

Dr. Quick. 
Secretary.— Mr. Edward Wilson. 
Assistant Secretary. — Mr. E. Lapthorne. 
Tbkascrer. — Mr. A. A. Piggin. 
FiXAXCE Committee.— Messrs. G. H. Willis, G. H. Smith, C. T. Brewer. 



DELEGATES : 

Amott, D. ... ... ... Federation League, Yarrawonga. 

Barker, S. ... ... ... Protection Liberal and Federation League, Melbourne. 

Barrett, Herbert Vice-President Board of Directors of A.N.A., Victoria. 

Berryman, (i. H. Federation League, Moama. 

Boyle, A. 0. ... ... ... Federation League, Howlong. 

Brewer, C. T. ... ... Federation League, Corowa. 

Bnd*)n, H . ... ... ... Progress Committee, Germanton. 



256 



LIST OF MEMBERS OF 



Bromfield, H 

Brown, A. B. ... 
Brown, Andrew U. 
Buckley, Allan K. 
Caniplin, A. 
Chanter, J.M., M.L.A. 

Church, W. R 

Clifton, W. A 

Cook, James 
Cowderoy, B. ... 
Crockett, M. C. M. ... 
Dowling, Edward 
Drummond, W. D. 
Easterby, W. H. 
Edmundson, F. W. ... 
Garran, R. R., B.A. ... 
(Torman, D. 
Oorman, E. J. ... 
Grondona, C. H. 
Haig, Geo. G. ... 

Hallett, C 

Hampson, A. J. 
Harricks, F. M. 
Hemmings, R. ... 
Holland, James 
Hose, Rev. W. Clarke 
Jameson, A. 
Kilborn, R. 
Lapthorne, Ernest 
Lormer, W. J. ... 

McGeoch, R 

Maloney, W., M.L.A. 
Miller, John J. .. 

Mitchell, P. S 

Morris, W. A. ... ... 

Nicoll, B. B., M.L.A... 
O'Dwyer, E. D. 
O'Grady, Charles 
O'SuUivan, E. W., M.L.A. 
Peacock, A. J., M.L. A. 
Piggin, Alex. A. 

Piggin, F. C 

Pigott, E. F 

Prendergast. G. M. 
Quick, John, LL.D. 

Rain, W 

Ross, Alex. 
Ross, John 
Russell, Geo. 
Shields, John G. 
iSloane, J. A. S. 

Smith, G. S 

Stretton, D 



Federation League, Howlong. 
Progress Committee, Germanton. 
Federation League, Tocumwal. 
Federation League, Rutherglen. 
Federation League, Mulwala. 
Federation League, Koondrook and Barmah. 
Young Victoria Patriotic League, Melbourne. 
Federation League, Corowa. 

Protection Liberal and Federation League, Melbourne- 
President Chamber of Commerce, Melbourne. 
Federation League, Yarrawonga. 
Hon. Secretary A.N. A., Sydney. 
Federation League, Berrigan. 
Federation League, Howlong. 
Federation League, Wodonga. 
Federation League, Sydney. 
Federation League, Savernake. 
Federation League, Berrigan. 
Chamber of Manufactures, Melbourne. 
Federation League, Wahgunyah. 
Chamber of Commerce, Melbourne. 
A.N. A., Bendigo. 

Young Victorian Patriotic League, Melbourne. 
A.N. A., Clifton HiU. 
Federation League, Yarrowonga. 
Federation League, Corowa. 
Federation League, Deniliquin. 
Federation League, Rutherglen. 
Federation League, Berrigan. 

Protection Liberal and Federation League, Melbourne. 
Federation League, Mulwala. 

Protection Liberal and Federation League, Melbourne. 
Municipality, Cootanmndra. 
Progress Committee, Tooma. 
Vice-President Commercial Travellers' Association, 

Melbourne. 
President A.N. A., Sydney. 
Federation League, Savernake. 
Federation League, Rutherglen. 
Federation League, Sydney. 
President Board of Directors A.N A. 
Federation League, Corowa. 
Federation League, Corowa. 
Progi-ess Association, Cobrani. 
President Progressive Political League, Melbourne. 
A.N. A., Bendigo. 
A.N. A., No. 1 Branch, Melbourne. 
Progress Committee, Germanton. 
Progress Committee, Germanton. 
A.N. A., Numurka. 
Federation League, Wodonga. 
Federation League, Mulwala. 
Federation League, Wahgunyah. 
Federation League, Echuca. 



FEDERAL CONTENTIONS, CONFERENCES, &c 



•257 



Taylor, H., D'E. 
Thomas, 0. C. ... 
Thorpe, -Jas. 

Towel, Dr 

Warner, Jas. 

Whitaker. T 

Whitford, F. P. 

\Vhitty, H. P 

Wilkinson, J , M L.A. 

Willis. Geo. H 

Wilson, Edw. ... 
Young, .J. B 



Imperial Federation League, Melbourne. 
Imperial Federation League, Melbourne, 
Federation League, Wahgunvah. 
Federation League, Berrigan. 
Municipality, Beechworth. 
Federation League, Albury. 
Federation League, Wahgunjah. 
Federation League, Tocumwal. 
Federation League, Albury. 
Federation League, Corowa. 
Federation League, Corowa. 
A.N. A., Bendigo. 



PEOPLE'S FEDERAL CONVENTION, BATHURST, 1896. 



OFFICERS : 

Presidkxt.— Thos. A. Machattie, Esq., M.B. 

Vice-Presidents.— Edmund Barton, Esq., Q.C. ; The Hon. F. B. Suttor ; W. P. Bassett, 
Esq., M.D., Mayor of Bathurst ; B. B NicoU, Esq., President A.N.A., Sydney; 
Lieut. -Col. J. G. Da vies. Chairman of Committees, Tasmania ; The Hon. R. E. 
O'Connor, Q C , M.L.C. ; The Rev. Professor Gosman, Victoria. 

HoxoRARY Secretary.— The Rev. Arthur J. Webb. 

HoxoRARV Assi.STAXT SECRETARY. — G. E. Flannery, Esq., B.A., LL.B. 

HosoRART Treasuber.- H. C. Matthews, Esq. 

Procedure Committee. — The President (Dr. Machattie), the Secretarj- (the Rev. A. J. 
Webb), the Right Rev. Dr. Camidge, the Right Rev. Dr. Byrne, the Right Rev. 
Dean Marriott, the Rev. Father Dowling, Dr. Hurst, Dr. Quick, Mr. G. E. Machat- 
tie, Mr. M. Meagher, Mr. A. G. Thompson, Mr. Wright, the Hon. Sydney Smith, 
M.P. 

DELEGATES AND INVITED MEMBERS: 
Alcorn, S. A., B. A., M.B. East Maitland Armstrong, J. F. ... Forbes 



Archer, Wm 

Balls, G.C 

Barcla}-, J. B 

Barrett, A. C 

Barrj'. G. J 

Barton, E , M.A., Q.C... 

Bassett, E. P 

Bassett, W. P., M.D. ... 

Batey, Geo. W 

Bavister, Thos., M.P. ... 
Bea\-i8, Horace Colin . . . 
Becher Rev. R. F., B.A. 
Bell, Alexander .. 
Bell, Colonel, United 
States Consul 

Callander, Wm 

Campbell, Colin H 
€anaway, A. P., B.A. .. 



Burwood 

Sydney 

Wickham 

Goulburn 

North Sydney 

Sydney 

Carcoar 

Bathm-st 

Greta 

Sydney 

Bathurst 

Bathurst 

Ballarat, Vic. 

Sydney 

Cobram, Vic. 
Echuca- Moama 
Svdnev 



Beveridge, John ... 
Blythe, Chas. 
Bond, Robert J. . . . 
Bourke, J. 
Boyd, John 
Brave, T. A., B.A 
Brennan, M. 

Brewer, C. T 

Brown, E. C 

BrowTi, D. R 

Buckland, Thos 

Burns, Wm. 

Bj-me, Right Rev. Dr. ... 

Byrne, S. A. 

Cohen, Solomon ... 

Conroy, J. M. 

Cook, Hon. Joseph, M.P. 



Lithgow 

Seliastopol Vic. 

Wickham 

Murrum burrah 

Bathurst 

Waratah 

Sydney 

Corowa 

Eaglehawk 

Sydney 

Croydon 

Sydney 

Bathurst 

Sydney 

Cootamundra 

Sydney 

Sydney 



258 



LIST OF MEMBERS OF 



Gary, William 
Chanter, J. M., M.P. ... 
Chippendall, W. 
Christie, George ... 

Clapin, A. H 

Clark, W. 

Clarke, George T. 
Cockburn, Hon. J. A., 
M.l) 

Davies, Lieutenant-Col., 

M.H.A. ... ■ ... 

Dickson, S. H 

Epps, W 

Fielding, Rev. S. G. ... 
Finckernagel, Wm. 
Flanagan, P. J. ... 
Flannery, G. E., B.A., 
LL.B 

Gannon, S. H. 
Garran, R. R., B.A. 
Garrard, Hon. J., M.P... 
Gillies, John, M.P. 

Halliday, C. W. B. 
Hammond, A. C. 
Hawthorne, J. S., M '*. 
Hay, Henry 

Hayes, J, W 

HefFernan, Rev. T. J. ... 
Higgins, R. M 

Ingle, James 

James, Wm. 

Jennings, Sir Patrick . . . 

Jessep, Thos., M.P. 

Kearney, Simon ... 

Kellett, W. F 

Kennard, F. H 

Kidd, John 

Lane, Henry 
Langwell, H. C. ... 
Lee, John, junr. .. 

Macdonnell, H. H. 
Machattie, T. A., M B.... 
Machattie, G. E. 
Mackay, J. A. K., M.P. 
Mackenzie, A. J. 
Mackenzie, D. 
Macnamara, H., junr. ... 
McGeoch, Robert 



Glebe 

Deniliqiiin 

Gympie, Q. 

Strathfield 

Merew ether 

Carcoar 

Sydney 

Adelaide, S.A. 



Hobart, Tas. 
Cootamundra 

Sydney 

Windsor 
Bingara 
Orange 

Sydney 



Cormack, Donald 
Cowper, Chas. 

Creer, N. Z 

CuUen, W. P., M.A. 

LL.D., M.L.C 
Curnow, J. H. 
Curry, A. 



Dowell, Wm. S. . 
Dowling, E. 
Duffy, Hon. J. G. 



Flood, Captain John 
Foster, Frank J. 
Fox, Frank 
Freehill, F. B., M.A. 



Lithgow Glover, George ... 

Sydney Gorman, E. J. 

Sydney Gosman, Professor 
West Maitland 



Warren 
Warringah 

Sydney 
Corowa 
Millthorpe 
Mt. Victoria 
Braidwood 



Hills, Samuel 
Hodge, W. F. ... 
Hogg. H. R.,M.A. 
Hood, J. T. 
Howe, George 
Hurley, W. F., M.P. 
Hurst, Geo., M.B. 



Sebastopol,Vic. Inglis, James 

Eaglehawk,Vic. Jones, G. E. Russell 

Sydney Jones, L. C. Russell 
Sydney 



Orange 


Kite, Wm. 


Mudgee 


Kitt, Wm. 


Wellington 




Sydney 




Sydney 


Luland, T. J. 


Waratah 


Lyne, W. J., M.P. 


Bathurst 




Cooma 


Matthews, W. H. 


Bathurst 


Mawby, H. 


Bathurst 


Meagher, John . . . 


Murrumburrah 


Meagher, John P. 


Sydney 


Melville, Ninian ... 


Young 


Meeks, A. W. ... 


Glebe 


Millen, E. D., M.P. 


Mulwala 


Miller, John J. ... 



Rookwood 

Sydnej^ 

Waratah 

Sydney 
Bendigo 
Merewether 



Sydney 
Sydney 
Melbourne 



Gj'mpie, Q. 
Wattle Fiat 
Sydney 
Sydney 

Aberdeen 
Berrigan 
Melbourne 



Sydney 
Hill End 
Melbourne 
Fitzroy, Vic. 
Seymour, Vie. 
Wattle Flat 
Bathurst 

Sydney 

Petersham 
Burwood 



Kelso 

War burton, 
Vic. 

Wellington 
Sydney 

Cootamundra. 

Cowra 

Bathurst 

Wyalong West 

Ashfield 

Sydney 

Bourke 

Cootamundra 



FEDERAL CONVENTIONS, CONFERENCES, Ac. 



259 



McKenzie, Hugh 




Echuca- Muaraa 


Mills, Henry 


Balmain 


McLaren, \Y. 




Blayney 


Milne, Alexander M. 


Balmain 


McLennan, Rev. D. 




Berry 


Moore, S. W., M.P. ... 


Bingara 


McXamara, W H. 




S\'dney 


Moran, His Eminence 




Magney, Thos. 




WooUahra 


Cardinal 


Sydney 


Marriott, Very Rev. 


Dean 


Eathurst 


Morris, Professor E. E. . . . 


Melbourne 


Martin, James ... 




Sydney 


Mailer, Narcisse 


Dubbo 


Matthews, H. C. 




Bathurst 






NicoU, B. B. 




Sydney 


Xorton, John 


Sydney 


Niven, \V. F. 




Ballarat, Vic. 






Oakes, Rev. G. S. 




Kelso 


O'Haran, Dr. 


Sydney 


O'Connor, Hon. D. , M. L. C. 


Sydney 


O'Mara, .John 


Stockton 



OConnor, Hon. R. E., 

M.L.C Sydney 



ParnelL E. A. ... 
Paul, W. H. 
Peacock, R. W. ... 
Pilcher, G. de V. 

Quick, John, LL.D. 



Kelso Pinkstone, Fred. ... Cootamundra 

Bathurst Pryor, Benjamin... ... Greta 

Perth, N.S.W. Purves, .L M., M.A. ... Sydney 

Orange Pymont, Alfred Hill End 

Bendigo 



Rees, Evan 


Stockton 


Rodgers, .J. S. ... 


. . . Newcastle 


Reid, Hon. G. H., 




Rohner, Wm. 


... Cobrara, Vic. 


Premier, X.S.W. ... 


Sydnej- 


Rolin. Tom, M.A. 


... Sydney 


Reid, A. C 


Cowra 


Ross, S. A. 


. . . Sj'dney 


Renehan, J. T 


Cootamundra 


Russart, .Jacob ... 


. . . Blajmey 


Richardson, J. J. 


Goulburn 


Ryan, James 


... Wodonga, Vic. 


Robson, Thos 


Merewether 






See, John, M.P 


Sydney 


Smith, W. C. .. 


. . . Auburn 


Shackle, A. 


Grenfell 


Spears, J 


... Granville 


Sharpe, John 


Sebastopol 


Staflford, A. 


... Manilla 


Shute, Richard 


Burwood 


Stephen, Consett 


Croydon 


Simpson, Robert... 


Merewether 


Stephen, Wm. 


. . . Sydney 


Skelton. J. 0. M. 


Sydney 


Stewart. R. W. ... 


... Hillston 


Small. 0. W 


Auburn 


Stratton, J. T. ... 


Cootamundra 


Smith, Hon. Sydney, M.P. 


Sydney 


Struthers, James 


. . . Warren 


Smith, Thos 


Newcastle 


Suttor, Hon. F. B. 


. . . Sydney 


Taylor, J. W., M.A. ... 


Forlies 


Thiselton. R. G. ... 


... Brighton, S.A. 


Taylor, Rev. W. G., Pre- 




Thomas, F. J. ... 


... Glen Innes 


sident Wesleyan Con- 




Thompson, A. G.... 


. . . Bathurst 


ference 


Bathurst 


Tovey, Rev. S. S., B.A. Sydney 


Terry, E 


Ryde 


Turner, .John 


... Prahran, Vic. 


Upward, John 


Ashfield 






Wade, John 


Sydney 


West, John E. ... 


. . . Sydney 


Walker, Arthur 


Paddington 


West, T. .L 


. . . Paddington 


Walker, J. T 


Sydney 


Whitmee, S. 


Millthorpe 


Warren, W 


Sydney 


Wilkinson, R. B. 


. . . Sydney 


Webb, Rev. Arthur J. ... 


Bathurst 


Williams, E. 


. . . Bathurst 



260 



LIST OF MEMBERS OF 



Webb, Hon. Edmund, 

M.L.C 

Webb, N. A., LL.B. . 

Weeden, John ... 
West, John 



Young, Rev. (Janon 



Williamson, John 

Bathurst Wilson, Charles G. 

Port Augusta, Wilson, Edward... 

S.A, Windsor, W. H.... 

Tumut Withers, J. W. ... 



Sydney 

Armidale 

Corowa 

Granville 

Sydney 



Shepparton, 
Vic. 

Perth, N.S.W. 



Wittenoom, Hon. E. H. Perth, W.A. 



STATUTORY FEDERAL CONVENTION, 1897-8. 



OFFICERS : 
President. — The Right Honourable Charles C. Kingston, P.C, Q.C, M.H.A. 
Chaikman of Committee.— The Honourable Sir Richard C. Baker, K.C.M.G., M.L.C. 
Leader. — The Honourable Edmund Barton, Q.C, M.L.C. 



REPRESENTATIVES. 



New South Wales. 



The Honourable Richard Edward O'Connor, 

M.L.C., Q.C. 
The Honourable Sir Joseph Palmer Abbott, 

K.C.M.G. (Speaker Legislative 

Assembly). 
James Thomas Walker, Esqiiire. 
Bernhard Ringrose Wise, Esquire. 



Edmund Barton, Esquire, M.L.C, Q.C. 
The Right Honourable George Houstoun 

Reid, P.C, M.L.A. (Premier). 
The Honourable Joseph Hector Cairuthers, 

M.L.A. (Secretary for Lands). 
William McMillan, Esquire, M.L.A. 
William John Lyne, Esquire, M.L.A. 
The Honourable James Nixon Brunker, 

M.L.A. (Colonial Secretary). 

South Australia. 
The Right Honourable Charles Cameron The Honourable John 

Kingston, P.C, Q.C, M.H.A. (Premier) 
The Honourable Frederick William Holder, 

M.H.A. (Treasurer). 
The Honourable John Alexander Cock burn, 

M.D., M.H.A. (Minister of Education). 
The Honourable Sir Richard Chaffey Baker, 

K.C.M.G. (President of the Legislative 

Council). 



Hannah Gordon, 

M.L.C. 
Josiah Henrj' Symon, Esquire, Q C. 
The Honourable Sir John William Downer, 

Q.C, K.C.M.G., M.H.A. 
Patrick McMahon Glynn, Esquire, B.A., 

LL.B. 
The Honourable James Henderson Howe. 
Vaiben Lewis Solomon, Esquire, M.H.A. 



Tasmania. 



The Honourable Sir Philip Oakley Fysh, 

K.C.M.G.. M.H.A. (Treasurer). 
The Right Honourable Sir Edward Nicholas 

Coventry Braddon, P.O., K.C.M.G., 

M.H.A. (Premier). 
The Honourable Henry Dobson, M.H.A. 
The Honourable Neil Elliott Lewis, M.H.A. 
The Honourable Nicholas John Brown, 

M.H.A. 



The Honourable Charles Henry Grant, 

M.L.C. 
The Honourable Adye Douglas (President 

Legislative Council). 
The Honourable William Moore, M.L.C. 

(Chief Secretary). 
Matthew John Clarke, Esquire, M.H.A. 
The Honourable Jolm Henry, M.H.A. 



FEDERAL CONVENTIONS, CONFERENCES, &c. 



261 



Victoria. 



The Right Honourable Sir George Turner, 
P.C, K.C.M.G., M.L.A. (Premier). 

John Quick. Esquire, LL.D. 

The Honourable Alfred Deakin, M.L.A. 

The Honourable Alexander James Peacock, 
M.L. A. (Chief Secretary). 

The Honourable Isaac Alfred Isaacs, 
M . L A. ( Attorney-G^eneral). 

William Arthur Trenwith, Esquire, M.L.A. 

"Western 

The Right Honourable Sir John Forrest, 
P.C, K.C.M.G., M.L.A. (Premier, 
Colonial Secretary, and Colonial Trea- 
surer). 

The Honourable Sir James George Lee 
Steere, Knight (Speaker l.iegislative 
Assembly). 

George Leake, Esquire, M.L.A. 

The Honourable Frederick Henry Piesse, 
M.L.A.' (Commissioner of Railways). 

The Honourable John Winthrop Hackett, 
M.L.C. 

William Thorlej' Loton, Esquire, M.L. A.* 



The Honourable Sir Graham Berry, 

K.C.M.G. (Speaker Legislative 

Assembl}'). 
The Honourable Simon Fraser, M.L.C. 
The Honourable Sir William Austin Zeal, 

K.C.M.G. f President Legislative 

Council). 
Henry Bournes Higgins, Esquire, M.L A. 

Australia. 
Walter Hartwell James, Esquire, M.L.A. 
Albert Young Hassell, Esquire, M.L.A. 
Robert Frederick ShoU, Esquire, M.L.A.* 
The Honourable John Howard Taylor, 

M.L.C.* 
The Honourable Henry Briggs, M.L.C.t 
The Honourable Frederick Thomas 

Crowder. M.L.C.t 
Tlie Honourable Andrew Harriot Henning, 

M.L.C.t 
The Honourable Harrj' Whittal Venn, 

M.L.C.t 



Resigned "ieth August, 189". 



t From 26th August, 1897. 



262 COMMONWEALTH OF AUSTRALIA [63 & 64 Vict. 



4 



THE 



COMMONWEALTH OF AUSTRALIA 
CONSTITUTION ACT. 



63 & G4 VICT. 
CHAPTER 12. 

An Act to constitute the Commonwealth of Austraha. 
..p. 1900. [9th July 1900.] 

WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, 
and Tasmania, humbly relying on the blessing of Almighty God, have agreed to 
unite in one indissoluble Federal Commonwealth under the Crown of the United 
Kingdom of Great Britain and Ireland, and under the Constitution hereby established : 

And whereas it is expedient to provide for the admission into the Commonwealth 
of other Australasian Colonies and possessions of the Queen : 

Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the 
advice and consent of the Lords Spiritual and Temporal, and Commons, in this present 
Parliament assembled, and by the authority of the same, as follows : — 

t title. !• This Act may be cited as The Commonwealth of Australia Constitution Act. 

;o extend to 2. The provisions of this Act referring to the Queen shall extend to Her Majesty's 

»ssK)rs ^ heirs and successors in the sovereignty of the United Kingdom. 

lamation of 3. It shall be lawful for the Queen, with the advice of the Privy Council, to declare 

monwealth. ]jy proclamation that, on and after a day therein appointed, not being later than one 
year after the passing of this Act, the people of New South Wales, Victoria, South 
Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the 
people of Western Australia have agreed thereto, of Western Australia, shall be united 
in a Federal Commonwealth under the name of the Commonwealth of Australia. 
But the Queen may, at any time after the proclamation, appoint a Governor-General for 
the Commonwealth. 

mencenient 4. The Commonwealth shall be established, and the Constitution of the Common- 

wealth shall take efifect, on and after the day so appointed. But the Parliaments of the 
several colonies may at any time after the passing of this Act make any such laws, to 
come into operation on the day so appointed, as they might have made if the Ccmstitu- 
tion had taken eflfect at the passing of this Act. 
ation of the 5. This Act, and all laws made by the Parliament of the Commonwealth under the 
laws. Constitution, shall be binding on the courts, judges, and people of every Stsite and 

of every part of the Commonwealth, notwithstanding anything in the laws of any State ; 
and the laws of the Commonwealth shall be in force on all British ships, the Queen's 
ships of WHr excepted, whose first port of clearance and whose port of destination are in 
the Commonwealth. 

litions. 6. " The CommonweAlth " shall mean the Commonwealth of Australia as established 

under this Act. 

" The States " shall mean such of the colonies of New South Wales, New Zealand, 
Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the 
northern territory of South Australia, as for the time being are parts of the Common- 
wealth, and such colonies or territories as may be a<lmitted into or established by the 
Commonwealth as States ; and each of such parts of the Commonwealth shall be called 
•'a State." 



Ch. 12.] CONSTITUTION ACT. 263 

A.D. 1900. 
" Original States " shall mean such States as are parts of the Commonwealth at its 
establishment. 

7. The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to Repeal of 
atfect any laws passed by the Federal Council of Australasia and in force at the estab- _\ct. 

lishment of the Commonwealth. *^^^ ♦» ""«' 

c. 60. 
Any such law may be repealed as to any State by the Parliament of the Common- 
wealth, or as to any colony not being a State by the Parliament thereof. 

8. After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply Application ol 
to any colony which becomes a State of the Commonwealth ; but the Commonwealth Boundaries Ac 
shall be taken to be a self-governing colony for the purposes of that Act. 5S and 59 Vict 

9. The Constitution of the Commonwealth shall be as follows : — Constitution. 

THE CONSTITUTION. 

This Constitution is divided as follows : — 
CHAPTER I.— THE PARLIAMEXT : 

Part I. — General : 

Part II. — The Senate : 

Part III. — The House of Representatives : 

Part IV. — Both Houses of the Parliament : 

Part V. — Powers of the Parliament : 
CHAPTER II.— THE EXECUTIVE GOVERNMENT : 
CHAPTER III.— THE JUDICATURE : 
CH.\PTER IV —FINANCE AND TRADE : 
CHAPTER v.— THE STATES: 
CHAPTER VI.— NEW STATES: 
CHAPTER VII.— MISCELLANEOUS : 

CHAPTER VIII.— ALTERATION OF THE CONSTITUTION 
THE SCHEDULE. 



Chap. I. 

CHAPTER I. tubParuamj 

The Parliament. p^' i 

GexKral. 
Part I. — General. 



1. The legislative power of the Commonwealth shall be vested in a Federal Parlia- Legislative 
ment, which shall consist of the Queen, a Senate, and a House of Representatives, and power, 
which is herein-after called "The Parliament," or "The Parliament of the Common- 
wealth." 

2. A Governor-General appointed by the Queen shall be Her Majesty's representa- Govemor- 
tive in the Commonwealth, and shall have and may exercise in the Commonwealth cs^neral. 
•during the Queen's pleasure, but subject to this Constitution, such powers and functions 

of the Queen as Her Majesty may be pleased to assign to him. 

3. There shall be pajable to the Queen out of the Consolidated Revenue fund of Salary of 
the Commonwealth, for the salary of the Governor-General, an annual sum which, until Qg^l^i*"^" 
the Parliament otherwise provides, shall be ten thousand pounds. 

The salary of a Governor-General shall not be altered during his continuance in 
•office. 

4. The provisions of this Constitution relating to the Governor-General extend and Provisions 
apply to the Governor-General for the time being, or such person as the Queen may ^^]*grnor'* 
appoint to administer the Government of the Commonwealth ; but no such person shall General 
be entitled to receive any salary from the Commonwealth in respect of any other office 

during his administration of the Government of the Commonwealth. 

5. The Governor-General may appoint such times for holding the sessions of the Sessions of 
Parliament as he thinks fit, and may also from time to time, by Proclamation or other- p^ol^tiona 
^lae, prorogue the Parliament, and may in like manner dissolve the House of ^^5501= jj,,,, 
itepresentatives. 



264 



COMMONWEALTH OF AUSTRALIA [63 & 64 Vict. 



A.D. 1900. 



Summoning^ 
Parliament. 



First session. 



Yearly session 
of Parliament. 



Part II. 
The Senate. 



Qualification of 
electors. 



Method of 
election of 
senators. 



Times and 
places. 

Application of 
State laws. 



After anj' general election the Parliament shall be summoned to meet not later than 
thirty daj's after the day appointed for the return of the writs. 

The Parliament shall be summoned to meet not later than six months after the 
establishment of the Commonwealth 

6. There shall be a session of the Parliament once at least in every year, so that 
twelve months shall not intervene between the last sitting of the Parliament in one 
session and its first sitting in the next session. 

Part II. — Thk Senate. 

7. The Senate shall be composed of senators for each State, directly chosen by the 
people of the State, voting, until the Parliament otherwise provides, as one electorate. 

But until the Pai'liament of the Commonwealth otherwise provides, the Parliament 
of the State of Queensland, if that State be an Original State, may make laws dividing 
the State into divisions and determining the number of senators to be chosen for each 
division, and in the absence of such provision the State shall be one electorate. 

Until the Parliament otherwise provides there shall be six senators for each Original 
State. The Parliament may make laws increasing or diminishing the number of senators 
for each State, but so that equal representation of the several Original States shall be 
maintained and that no Original State shall have less than six senators. 

The senators shall be chosen for a term of six j-ears, and the names of the senators- 
chosen for each State shall be certified by the Governor to the Governor-General. 

8. The qualification of electors of senators shall be in each State that which is 
prescribed by this Constitution, or by the Parliament, as the qualification for electors 
of members of the House of Representatives ; but in the choosing of senators each 
elector shall vote only once. 

9. The Parliament of the Commonwealth may make laws prescribing the method of 
choosing senators, but so that the method shall be uniform for all the States. Subject 
to any such law, the Parliament of each State may make laws prescribing the method 
of choosing the senators for that State. 

The Parliament of a State may make laws for determining the times and places of 
elections of senators for the State. 

10. Until the Parliament otherwise provides, but subject to this Constitution, the 
laws in force in each State, for the time being, relating to elections for the more 
numerous House of the Parliament of the State shall, as nearly as practicable, apply to 
elections of Senators for the State. 



Failure to choose 
senators. 



Rotation of 
senators. 



11. The Senate maj' proceed to the despatch of business, notwithstanding the failure 
of any State to provide for its representation in the Senate. 

Issue of writs. 12. The Governor of any State may cause writs to be issued for elections of senators 

for the State. In case of the dissolution of the Senate the writs shall be issued within 
ten days from the proclamation of such dissolution. 

13. As soon as may be after the Senate first meets, and after each first meeting of 
the Senate following a dissolution thereof, the Senate shall divide the senators chosen 
for each State into two classes, as nearly equal in number as practicable ; and the places 
of the senators of the first class shall become vacant at the expiration of the third year, 
and the places of tliose of the second class at the expiration of the sixth year, from the 
beginning of their term of service ; and afterwards the places of senators shall become 
vacant at the expiration of six years from the beginning of their term of service. 

The election to fill vacant places shall be made in the year at the expiration of 
which the places are to become vacant. 

For the purposes of this section the term of service of a senator shall be taken to 
begin on the first day of January following the day of his election, except in the cases 
of the first election and of the election next after any dissolution of the Senate, when it 
shall be taken to begin on the first day of January preceding the day of his election. 

14. Whenever the number of senators for a State is increased or dimini.shed, the 
Parliament of the Commonwealth may make such provision for the vacating of the 
places of senators for the State as it deems necessary to maintain regularitj' iu the 
rotation. 

15. If the place of a senator becomes vacant before the expiration of his term of 
service, the Houses of Parliament of the State for which he was chosen shall, sitting 
and voting together, choose a penson to hold the place until the expiration of the term, 
or until the election of a successor as hereinafter provided, whichever first happens. 



Further 
provision for 
rotation. 



Casual 
vacancies. 



A.D. 1900. 



Ch. 12] CONSTITUTION ACT. 265 

But if the Houses of Parliament of the Stat« are not in session at the time when the 
vacancy is notifie<l, the Governor of the State, with the advice of the Executive Council 
thereof, may appoint a person to hold the place until the expiration of fourteen days 
after the beginning of the next session of the Parliament of the State, or until the 
election of a successor, whichever first happens. 

At the next general election of members of the House of Representatives, or at the 
next election of senators for ihe State, whichever first happens, a successor shall, if the 
term has not then expired, be chosen to hold the place from the date of his election 
until the expiration of the term. 

The name of any senator so chosen or appointed shall be certified by the Governor 
of the State to the Governor-General. 

16. The qualifications of a senator shall be the same as those of a member of the Qualifications of 
House of Representatives. senator. 

17. The Senate shall, before proceeding to the despatch of any other business. Election of 
choose a senator to be the President of the Senate ; and as often as the office of President President, 
becomes vacant the Senate shall again choose a senator to be the President. 

The President shall cease to hold his office if he ceases to be a senator. He may be 
removed from office by a vote of the Senate, or he may resign his office or his seat by 
writing addressed to the Governor-General. 

18. Before or during any absence of the President, the Senate may choose a senator Absence of 
to perform his duties in his absence. Resident. 

19. A senator may, by writing addressed to the President, or to the Governor- Resignation of 
General if there is no President or if the President is absent from the Commonwealth, senator, 
resign his place, which thereupon shall become vacant. 

20. The place of a senator shall become vacant if for two consecutive months of any Vacancy by 
session of the Parliament he, without the permission of the Senate, fails to attend the absence. 
Senate. 

2 1 . Whenever a vacancy happens in the Senate, the President, or if there is no vacancy to be 
President or if the President is absent from the Commonwealth the Governor-General, notified, 
shall notifj- the same to the Governor of the State in the representation of which the 

vacancy has happened. 

22. Until the Parliament otherwise provides, the presence of at least one-third of Quorum, 
the whole number of the senators shall be necessary to constitute a meeting of the 
Senate for the exercise of its powers. 

23. Questions arismg in the Senate shall be determined by a majority of votes, and Voting in 
each senator shall have one vote. The President shall in all cases be entitled to a vote ; Senate, 
and when the votes are equal the question shall pass in the negative. 



Part III. — Thk House of Rkpresestatives. 



Part III. 
HorsE OP Rbpre- 

8KSTATIVBS. 

24. The House of Representatives shall be composed of members directly chosen Constitution of 
by the people of the Commonwealth, and the number of such members shall be, as House of Repre- 
nearly as practicable, twice the number of the senators. sentatives. 

The number of members chosen in the several States shall be in proportion to the 
respective numbers of their people, and shall, until the Parliament otherwise provides, 
be determined, whenever necessary, in the following manner : — 

(i.) A quota shall be ascertained by dividing the numljer of the people of the 
Commonwealth, as shown by the latest statistics of the Commonwealth, 
by twice the number of the senators : 
(ii.) The number of members to be chosen in each State shall be determined by 
di\iding the number of the people of the State, as shown by the latest 
statistics of the Commonwealth, by the quota ; and if on such division 
there is a remainder greater than one-half of the quota, one more member 
shall be chosen in the State. 
But notwithstanding anything in this section, five members at least shall be chosen 
in each Original State. 

25. For the purposes of the last section, if by the law of anj' State all peraons of Provision as to 
Miy race are disqualified from voting at elections for the more numerous House of the races disqualified 
Parliament of the State, then, in reckoning the number of the people of the State or of ^^°^ voting. 
the Commonwealth, persons of that race resident in that State shall not be counted. 



266 



COMMONWEALTH OF AUSTRALIA [63 & 64 Vict. 



A.D. 1900. 

Representatives 26. Notwithstamling anything in section twenty-four, the number of members to be 

in first Parlia- chosen in each State at the first election shall be as follows : — 

ment. 

New South Wales ... ... ... ... twenty-three; 

Victoria ... ... ... .. ... ... twenty; 

Queensland ... ... ... .. ... eight; 

South Australia ... ... ... ... ... six; 

Tasmania... ... ... .. ... ... five; 

Provided that if Western Australia is an Original State, the numbers shall be as 
follows : — 



New South Wales 
Victoria ... 
Queensland 

South Australia ... 
Western Australia 
Tasmania ... 



twenty-six ; 
twentj^-three ; 
nine ; 
seven ; 
five ; 
five. 



Alteration of 
number of 
members. 
Duration of 



Qualification of 
electors. 



Application of 
State laws. 



27 Subject to this Constitution, the Parliament may make laws for increasing or 
diminishing the number of the members of the House of Representatives. 

28. Every House of Representatives shall continue for three years from the first 
sentatives^^^*^^' ™66ting of the House, and no longer, but may be sooner dissolved by the Governor- 
General. 

Electoral 29. Until the Parliament of the Commonwealth otherwise provides, the Parliament 

divisions. of any State may make laws for determining the divisions in each State for which 

members of the House of Representatives may be chosen, and the number of members 

to be chosen for each division. A division shall not be formed out of parts of different 

States. 

In the absence of other provision, each State shall be one electorate. 

30. Until the Parliament otherwi.se provides, the qualification of electors of 
members of the House of Representatives shall be in each State that which is prescribed 
by the law of the State as the qualification of electors of the more numerous House of 
Parliament of the State ; but in the choosing of members each elector shall vote 
only once. 

31. Until the Parliament otherwise provides, but subject to this Constitution, the 
laws in force in each State for the time being relating to elections for the more numerous 
House of the Parliament of the State shall, as nearly as practicable, apply to elections 
in the State of members of the House of Representatives. 

Writs for general 32 The Governor-General in Council may cause writs to be issued for general 

election. elections of members of the House of Representatives. 

After the first general election, the writs shall be issued within ten days from the 

expiry of a House of Representatives or from the proclamation of a dissolution 

thereof. 

33. Whenever a vacancy happens in the House of Representatives, the Speaker 
shall issue his writ for the election of a new member, or if there is no Speaker or if he 
is absent from the Commonwealth the Governor-General in Council may issue 
the writ. 

34. Until the Parliament otherwise provides, the qualifications of a member of the 
House of Representatives shall be as follows : — 

(i.) He must be of the full age of twenty-one years, and must be an elector 
entitled to vote at the election of members of the House of Representa- 
tives, or a person qualified to become such elector, and must have been 
for three years at the least a resident within the limits of the Common- 
wealth as existing at the time when he is chosen : 
(ii.) He must be a subject of the Queen, either natural-born or for at least five 
years naturalized under a law of the United Kingdom, or of a Colony 
which has become or becomes a State, or of the Commonwealth, or of a 
State. 

35. The House of Representatives shall, before proceeding to the despatch of any 
other business, choose a member to be the Speaker of the House, and as often as the 
office of Speaker becomes vacant the House shall again choose a member to be the 
Speaker. 

The Speaker shall cease to hold his office if he ceases to be a member. He may be 
removed from office by a vote of the House, or he may resign his office or his seat by 
writing addressed to the Governor-General. 



Writs for 
vacancie.s. 



Qualifications of 
ntembers. 



Election of 
Speaker. 



Ch. 12.] CONSTITUTION ACT. 267 

""^ A.D. 1900. 



3i). Before or during any absence of tlie Speaker, the House of Representatives Absence of 
niav choose a member to perform his duties in his absence. Speaker. 

37. A member may by writing addressed to the Speaker, or to the Governor- Resigmation of 
General if there is no 'Speaker or if the Speaker is absent from the Commonwealth, member, 
resign his place, which thereupon shall become vacant. 

38. The place of a member shall become vacant if for two consecutive months of ^^^^^y ^y 
anv session of the Parliament he, without the permission of the House, fails to attend *"^"^^- 
the House. 

39. Until the Parliament otherwise provides, the presence of at least one-third of Quorum, 
the whole number of the members of the House of Representatives shall be necessary 

to constitute a meeting of the House for the exercise of its powers. 

40. Questions arising in the House of Representatives shall be determined by a Voting in House 
majority of votes other than that of the Speaker. The Speaker shall not vote unless the j^j^gP""^^"' 
numbers are equal, and then he shall have a casting vote. 

Part IV. 

Part IV. -Both Houses of the Parliament. t^p^uSt, 



41. No adult person who has or acquires a right to vote at elections for the more Ri<;ht of electors 
numerous House of the Parliament of a State shall, while the right continues, be of States, 
prevented by any law of the Commonwealth from voting at elections for either House of 

the Parliament of the Commonwealth 

42. Every senator and ever}' member of the House of Representatives shall before Oath or 
taking his seat make and subscribe before the Governor-General, or some person attirmation of 
authorised by him, an oath or affirmation of allegiance in the form set forth in the'^ e^ance. 
schedule to this Constitution. 

43. A member of either House of the Parliament shall be incapable of being chosen Member of one 
or of sitting as a member of the other House. House ineligible 

° for other. 

44. Any person who — Disqualification. 

(i. ) Is under any acknowledgment of allegiance, obedience, or adherence to a 
foreign power, or is a subject or a citizen or entitled to the rights or 
privileges of a subject or a citizen of a foreign power : or 
(ii.) Is attainted of treason, or has been convicted and is under sentence, or subject 
to be sentenced, for an}' offence punishable under the law of the 
Commonwealth or of a State bj' imprisonment for one year or longer : or 
(iii. ) Is an undischarged bankrupt or insolvent : or 

(iv. ) Holds any office of profit under the Crown, or any pension payable during the 
pleasure of tlie Crown out of any of the revenues of the Commonwealth : 
or 
(v.) Has an\' direct or indirect pecuniary interest in any agreement with the 
Public Service of the Commonwealth otherwise than as a member and in 
common witii the other members of an incorporated company consisting 
of more than twenty-five persons : 
shall be incapable of being chosen or of sitting as a senator or a member of the House 
of Representatives. 

But sub-section iv. does not apply to the office of any of the Queen's Ministers of 
State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the 
receipt of pay, half pay, or a pension by any person as an officer or member of the 
Queen's navy or army, or to the receipt of pay as an officer or member of the naval or 
military forces of the Commonwealth by any person whose services are not wholly 
employed by the Commonwealth. 

45. If a senator or member of the House of Representatives — Vacancy on 

happening of 
(i.) Becomes subject to any of the disabilities mentioned in the last preceding disqualification 

section : or 
(ii.) Takes the benefit, whether by a.ssignment, composition, or otherwise, of any 

law relating to bankrupt or insolvent debtors : or 
(iii.) Directly or indirectly takes or agrees to take any fee or honorarium for 
services rendered to the Commonwealth, or for ser\*ices rendered in the 
Parliament to any person or btate : 
his place shall thereupon become vacant. 



268 



COMMONWEALTH OF AUSTRALIA [63 & «4 Vict. 



A.D. 1900. 

Penalty for 
sitting when 
disqualified. 



Disputed 

elections. 



Allowance to 
members. 



Privileges, &c. 
of Houses. 



Rules and 
orders. 



46. Until the Parliament otlierwise provides, any person declared by this Constitu- 
tion to be incapable of sitting as a senator or as a member of the House of Representa- 
tives shall, for every day on wliich he so sits, be liable to pay the sum of one hundred 
pounds to any person who sues for it in any court of competent jurisdiction. 

47. Until the Parliament otherwise provides, any question respecting the qualifica- 
tion of a senator or of a member of the House of Representatives, or respecting a vacancy 
in either House of the Parliament, and any question of a disputed election to either 
House, shall be determined by the House in which the question arises. 

48. Until the Parliament otherwise provides, each senator and each member of the 
House of Representatives shall x'eceive an allowance of four hundred pounds a year, to 
be reckoned from the day on which he takes his seat. 

49. The powers, privileges, and immunities of the Senate and of the House of 
Representatives, and of the members and the committees of each House, shall be such 
as are declared by the Parliament, and until declared shall be those of the Commons 
House of Parliament of the United Kingdom, and of its members and committees, at the 
establishment of the Commonwealth. 

50. Each House of the Parliament may make rules and orders with respect to — 

(i.) The mode in which its powers, privileges, and immunities may be exercised 
and upheld : 

(ii. ) The order and conduct of its business and proceedings either separately or 
jointly with the other House. 



Part V. 

Powers of thr 

Parliambnt. 



Part V.— Powers of the Parliament, 



Legislative 51. The Parliament shall, subject to this Constitution, have power to make laws for 

powers of the ^j^g peace, order, and good government of the Commonwealth, with respect to : — 

(i. ) Trade and commerce with other countries, and among the States : 

(ii. ) Taxation ; but so as not to discriminate between States or parts of States : 

(iii.) Bounties on the production or export of goods, but so that such bounties 
shall be uniform throughout the Commonwealth : 

(iv. ) Borrowing money on the public credit of the Commonwealth : 

(v.) Postal, telegraphic, telephonic, and other like services : 

(vi. ) The naval and military defence of the Commonwealth and of the several 
States, and the control of the forces to execute and maintain the laws of 
the Commonwealth : 

(vii. ) Lighthouses, lightships, beacons and buoys : 

(viii. ) Astronomical and meteorological observations : 

(ix.) Quarantine : 

(x.) Fisheries in Australian waters beyond territorial limits : 

(xi.) Census and statistics : 

(xii.) Currency, coinage, and legal tender : 

(xiii.) Banking, other than State banking; also State banking extending bej'ond 
the limits of the State concerned, the incorporation of banks, and the 
issue of paper money : 

(xiv.) Insurance, other than State insurance ; also State insurance extending 
beyond the limits of the State concerned : 

(xv.) Weights and measures : 

(xvi. ) Bills of exchange and promissory notes : 

(xvii.) Bankruptcy and insolvency : 

(xviii.) Copyrights, patents of inventions and designs, and trade marks : 

(xix. ) Naturalization and aliens : 

(xx.) Foreign corporations, and trading or financial corporations formed within 
the limits of the Commonwealth : 



Ch. 12.] 



CONSTITUTION ACT. 269 



A.D. 1900. 



(xxi.) Marriage: 

(xxii.) Divorce and uiatrinionial causes; and in relation thereto, parental rights, 
and the custody and guardianship of infants : 

(xxiii.) Invalid acd old-age pensions : 

(xxiv. ) The service and execution throughout the Commonwrealth of the civil and 
criminal process and the judguients of the courts of the States : 

(xxv.) The recognition thi'oughout the Commonwealth of the laws, the public Acts 
and records, and the judicial proceedings of the States : 

(xxvi.) The people of any race, other than the aboriginal race in any State, for 
whom it is deeme<l necessary to make special laws : 

(xxvii.) Immigration and emigration : 

(xxviii.) The influx of criminals : 

(xxix. ) External affairs : 

(xxx.) The relations of the Commonwealth with the islands of the Pacific : 

(xxxi.) The acquisition of property on just terms from any State or person for any 
purpose in respect of which the Parliament has power to make laws : 

(xxxii.) The control of railways with respect to transport for the naval and military 
purposes of the Commonwealth : 

ixxxiii. ) The acquisition, with the consent of a State, of any railways of the State on 
terms arranged Ijetween the Commonwealth and the State : 

(xxxiv.) Railway construction and extension in any State with the consent of that 
Sta'te : 

(xxxv. ) Conciliation and arbitration for the prevention and settlement of industrial 
disputes extending beyond the limits of any one State : 

(xxxvi.) Matters in respect of which this Constitution makes provision until the 
Parliament otherwise provides : 

(xxxvii.) Matters referred to the Parliament of the Commonwealth by the Parliament 
or Parliaments of any State or States, but so that the law shall extend 
only to States by whose Parliaments the matter is referred, or which 
afterwards adopt the law : 

(Kxxviii.) The exercise within the Commonwealth, at the request or with the concur- 
rence of the Parliaments of all the States directly concerned, of any 
power which can at the establishment ot this Constitution be exercised 
only by the Parliament of the United Kingdom or by the Federal 
Council of Australasia : 

(xxxix.) ilatters incidental to tlie execution of any power vested by this Constitution 
in the Parliament or in either House tliereof, or in the Government of 
the Commonwealth, or in the Federal Judicature, or in any department 
or officer of the Commonwealth. 

52. The Parliament shall, subject to this Constitution, have exclusive power to Exclusive 
make laws for the peace, order, and good government of the Conmionwealth with powers of the 
respect to— Parliainent 

(i.) The seat of government of the Commonwealth, and all places acquired by 

the Commonwealth for public purposes : 
(ii ) Matters relating to any department of the public service the control of 

which is by this Constitution transferred to the Executive Government 

of the Commonwealth : 
(iii ) Other matters declared by this Constitution to be within the exclusive power 

of the Parliament. 

5.3. Proposed laws appropriating revenue or moneys, or imposing taxation, shall Powers of the 
not originate in the Senate. But a proposed law sha'll not be taken to appropriate J^^l^ '°j 
revenue or moneys, or to impose taxation, by reason only of its containing provisions legislation, 
for the imposition or appropriation of fines or other pecuniary penalties, or for the 
demand or pajment or appropriation of fees for licences, or fees for services under the 
proposed law. 

The Senate may not amend proposed laws imposing taxation, or proposed laws 
appropriating revenue or moneys for the ordinary annual services of the Government. 



270 



COMMONWEALTH OF AUSTRALIA [63 & 64 Vict. 



A.D. 1900. 



Appropriation 
Bills. 

Tax Bills. 



Recommenda- 
tion of money 
votes. 



Disagrreement 
between the 
Houses. 



Royal assent to 
Bills. 



Recommen- 
dations by 
Governor- 
General. 

Disallowance by 
the Queen. 



Sig^nification of 
Queen's pleasure 
on Bills reserved. 



The Senate may not amend any proposed law so as to increase any proposed charge 
or burden on the people. 

The Senate may at any stage return to the House of Representatives any proposed 
law which the Senate may not amend, requesting, by message, the omission or amend- 
ment of any items or provisions therein. And the House of Representatives may, if it 
tliinks lit, make any of such omissions or amendments, with or without modifications. 

Except as provided in this section, the Senate shall have equal power with the 
House of Representatives in respect of all proposed laws. 

54. The proposed law which appropriates revenue or moneys for the ordinary 
annual services of the Government shall deal only with such appropriation. 

55 Laws imposing taxation shall deal only with the imposition of taxation, and 
any provision therein dealing with any other matter shall be of no effect. 

Laws imposing taxation, except laws imposing duties of customs or of excise, shall 
deal with one subject of taxation only ; but laws imposing duties of customs shall deal 
with duties of customs only, and law s imposing duties of excise shall deal with duties 
of excise only. 

56. A vote, resolution, or proposed law for the appropriation of revenue or moneys 
shall not be passed unless the purpose of the appropriation has in the same session been 
reconmiended by message of the Governor-General to the House in which the proposal 
originated. 

57. If the House of Representatives passes any proposed law, and the Senate 
rejects or fails to pass it, or passes it with amendments to which the House of Repre- 
sentatives will not agree, and if after an interval of three months the House of 
Repi-esentatives, in the same or the next session, again passes the proposed law witli or 
without any amendments which have been made, suggested, or agreed to by the Senate, 
and the Senate rejects or fails to pass it, or passes it with amendments to which the 
House of Representatives Avill not agree, the (Governor-General may dissolve the Senate 
and the House of Representatives simultaneously. But such dissolution shall not take 
place witliin six months before the date of the expiry of the House of Representatives 
by effluxion of time. 

If after such dissolution the House of Representatives again passes the proposed 
law, with or without any amendments which have been made, suggested, or agreed to b\' 
the Senate, and the Senate rejects or fails to pass it, or pas.ses it with amendments 
to which the House of Representatives will not agree, the Governor-General may 
convene a joint sitting of the members of the Senate and of the House of Repre- 
sentatives. 

The members present at the joint sitting maj- deliberate and shall vote together 
upon the proposed law as last proposed by the House of Representatives, and upon 
amendments, if any, which have been made therein by one House and not agreed to by 
the other, and any such amendments which are affirmed by an absolute majority of the 
total number